United States v. Kallestad

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-51089

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

CHARLES O. KALLESTAD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this 28 U.S.C. § 2255 case we consider a challenge to the
constitutionality of 18 U.S.C. § 2252(a)(4)(B), which prohibits the
possession of sexually explicit depictions of minors if those
depictions or the materials used to produce them were shipped in
interstate commerce.1 We are persuaded that Congress could

1
At the time of Kallestad’s charged conduct, 18 U.S.C. §
2252(a)(4)(B) provided criminal penalties for any person who

(B) knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which
contain any visual depiction that has been mailed, or has
been shipped or transported in interstate or foreign
commerce, or which was produced using materials which
have been mailed or so shipped or transported, by any
means including by computer, if –

(i) the producing of such visual depiction
rationally conclude that to regulate a national market in child
pornography it was necessary to regulate its local possession.
I
Government agents found a large number of nude photos and
films of women, some of whom appeared to be minors, in Kallestad’s
home. They also found notes he made regarding the women,
including their names, addresses, and phone numbers. Agents used
these notes to locate some of the women, and they discovered that
several of them were minors at the time the photos and films were
taken.
Kallestad had advertised in the Austin American Statesman
newspaper for “slender female nude models." Some of the
advertisements stated that the age of the "models" was
"unimportant." Several of the girls who responded to the
advertisement were 16 to 17 years old, and most of them told

involves the use of a minor engaging in
sexually explicit conduct; and

(ii) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B) (1991). Section 2252(a)(4) was amended
on October 30, 1998. See Protection of Children From Sexual
Predators Act of 1998, Pub. L. No. 105-314, Title II, §§ 202(a),
203(a), 112 Stat. 2977, 2977-78. The amended statute makes it an
offense to possess one or more (rather than three or more) sexually
explicit depictions of a minor. See 18 U.S.C.A. § 2252(a)(4)(B)
(2000). The amendments also provide for an affirmative defense
when three or fewer matters are possessed and the defendant either
promptly destroyed them or contacted law enforcement authorities.
See 18 U.S.C.A. § 2252(c) (2000). Kallestad’s conduct was
completed by October 31, 1991, the date on which officers
discovered the photographs. Since Kallestad’s conduct occurred
before the statute was amended, the government was required to
prove that he had three or more or sexually explicit depictions of
a minor.

2
Kallestad their ages and that they were high school students.
Kallestad took pictures and made films of the girls engaged in
sexually explicit conduct and in some instances of them engaging in
such conduct with him. The photos and films were made at
Kallestad’s home in Austin, Texas. The film used to make the
photos and films was manufactured outside of Texas.
Kallestad was convicted of numerous offenses including six
counts charging violations of section 2252(a)(4)(B).2 On direct
appeal, we vacated his sentence, finding an error in his sentence.
After Kallestad was resentenced, he moved for relief under 28
U.S.C. § 2255. He argues that his conviction for possession of
material involving the sexual exploitation of minors should be
vacated because the statute making that conduct an offense exceeds
the authority of Congress under the Commerce Clause. Kallestad did
not raise this issue on direct appeal.
The magistrate recommended denying relief, and the district
court did so, also denying a certificate of appealability. We
granted a certificate of appealability on the issue of the
constitutionality of the statute prohibiting possession of
materials involving the sexual exploitation of minors.
II
The government argues that Kallestad’s challenge is barred
because he did not raise the question on direct appeal. A section
2255 movant who fails to raise a constitutional or jurisdictional

2
His other offenses included conspiracy to commit bank fraud,
bank fraud, aiding and abetting, and making false statements to a
federally insured bank.

3
issue on direct appeal waives the issue for a collateral attack on
his conviction, unless there is cause for the default and prejudice
as a result.3 Kallestad argues that his counsel was ineffective
for not raising the issue on direct appeal.
It is true that ineffective assistance of counsel can meet the
cause and prejudice requirement for overcoming procedural default
in a section 2255 motion.4 We do not consider the contention
further because the government failed to preserve the issue. The
government asserted the procedural bar before the magistrate, but
filed no objection to the magistrate’s proposed findings and
recommendations even though Kallestad filed objections and the
district court conducted a de novo review of the case. The
government must invoke the procedural bar in the district court to
raise it here.5 A party who fails to file written objections to a
magistrate judge’s proposed findings and recommendations waives the
objection, and on appeal we will review the issue for plain error
only.6 The district court did not err in reaching the merits of
the constitutional challenge.
III

3
United States v. Patten, 40 F.3d 774, 776-77 (5th Cir. 1994)
(per curiam); United States v. Pierce, 959 F.2d 1297, 1301 (5th
Cir. 1992); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.
Unit A 1981).
4
Patten, 40 F.3d at 776-77; Pierce, 959 F.2d at 1301.
5
See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.
1992).
6
See Douglass v. United Services Auto Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996).

4
 Kallestad argues that section 2252(a)(4)(B), which prohibits
mere possession of child pornography, is beyond Congress’s power
under the Commerce Clause. We review this constitutional challenge
to a federal statute de novo.7
Similar arguments have been made in, and rejected by, other
courts. The Third Circuit, in United States v. Rodia,8 rejected a
similar challenge by a defendant convicted of possessing child
pornography. The court noted that, in passing the 1978 Protection
of Children Against Sexual Exploitation Act, Congress explicitly
found that child pornography was a “multi-million dollar industry,”
and the court concluded that there was a “substantial interstate
market” in child pornography.9 The Rodia court then analogized to

Wickard v. Filburn,10 and upheld the statute.11 Other courts have
upheld section 2252(a)(4)(B) based on its jurisdictional hook,
which requires that either the pornography itself, or the material
used to manufacture it, has moved in interstate commerce.12
In United States v. Lopez,13 the Supreme Court defined three

7
See United States v. Jennings, 195 F.3d 795, 800 (5th Cir.
1999).
8
194 F.3d 465, 477-79 (3d Cir. 1999).
9
Id. at 474.
10
317 U.S. 111 (1942).
11
See Rodia, 194 F.3d at 476; see also United States v.
Robinson, 137 F.3d 652, 655-56 (1st Cir. 1998).
12
See United States v. Bausch, 140 F.3d 739, 740-42 (8th Cir.
1998); Robinson, 137 F.3d at 654-55.
13
514 U.S. 549 (1995).

5
categories of activity Congress may regulate under the Commerce
Clause: channels of interstate commerce, persons or things
traveling in interstate commerce, and activities having a
substantial effect on interstate commerce.14 In United States v.

Morrison,15 the Court clarified how the third category is to be
analyzed. Courts are directed to inquire (1) whether the statute
regulates “commerce,” or an activity that might be deemed an
“economic activity,” broadly defined; (2) whether the statute has
an “express jurisdictional element” that restricts its application
to activities that have “an explicit connection with or effect on
interstate commerce”; (3) whether congressional findings support
the judgment that the activity in question has a substantial effect
on interstate commerce; and (4) whether the act made an offense has
an attenuated relationship to that substantial effect on interstate
commerce.16
Kallestad argues that his offense falls within the third
category, and like the crime of possessing a gun near a school
zone, does not have a sufficiently substantial effect on interstate
commerce to fall within Congress’s authority. He challenges
section 2252(a)(4)(B) facially and as applied. We find his
challenge unpersuasive.

A

14
Id. at 558-59.
15
120 S.Ct. 1740 (2000).
16
Id. at 1749-51.

6
 Applying the first Morrison factor, the conduct being
regulated here is commercial in character, defined broadly. As the
1986 Attorney General’s Commission on Pornography found, much of
the interstate traffic in child pornography “involves photographs
taken by child abusers themselves, and then either kept or
informally distributed to other child abusers.”17 Such pornography
is exchanged through the mails,18 and also becomes the basis for
commercial child pornography magazines, which are made not with
photographs taken by the magazine producers, but rather with
homemade photographs submitted by private child abusers.19 This
case is therefore distinct from Lopez, as the child pornography
statute "represents Congressional regulation of an item bound up
with interstate attributes and thus differs in substantial respect
from legislation concerning possession of a firearm within a purely
local school zone."20 Moreover, Wickard affirms that, when a person
produces for their own consumption a product that is traded in an
interstate market, his conduct is economic in character. Kallestad
may not have intended to sell his photographs, but then Filburn
never intended to sell his wheat.21 In this regard, Kallestad’s

17
Attorney General’s Commission on Pornography: Final Report
406 (U.S. Dep’t of Justice, 1986).
18
Id. at 407.
19
Id. at 408.
20
United States v. Knutson, 113 F.3d 27, 30 (5th Cir. 1997),
quoting United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.
1995).
21
See Wickard, 317 U.S. at 114. The dissent implies that
Wickard is no longer tenable in the wake of the Supreme Court's

7
conduct was unlike the rape at issue in Morrison.
B
Section 2252(a)(4)(B) also contains a jurisdictional hook.22
Section 2252(a)(4)(B) makes it an offense to possess child
pornography that “has been mailed, or has been shipped or
transported in interstate or foreign commerce, or which was
produced by using materials which have been mailed or so shipped or
transported.”23 No evidence demonstrated that Kallestad’s pictures
moved in interstate commerce, but the evidence established that his
film did.
This jurisdictional element is not alone sufficient to render
section 2252(a)(4)(B) constitutional. That argument, advanced by
the government, has no principled limit. Where the relationship
between the interstate and local activity is attenuated, a
jurisdictional hook alone cannot justify aggregating effects upon

decisions in Lopez and Morrison. Although the Court has noted that
Wickard resides in the outer boundaries of the Commerce Power, see
United States v. Lopez, 514 U.S. 549, 560 (1995), it has never
overruled the case. The Court has repeatedly underscored its
unwillingness to recognize the overruling of its prior decisions by
implication. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We
do not acknowledge, and we do not hold that other courts should
conclude our more recent cases have, by implication, overruled an
earlier precedent. . . . [T]he Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.") (internal quotation marks
omitted).
22
This court has said that the lack of such an element was
central to the Lopez Court’s decision to strike down the Gun-Free
School Zones Act. See United States v. Luna, 165 F.3d 316, 320
(5th Cir. 1999).
23
18 U.S.C. § 2252(a)(4)(B).

8
interstate commerce to find Congressional power under the Commerce
Clause. It is one thing for Congress to prohibit possession of a
weapon that has itself moved in interstate commerce, but it is
quite another thing for Congress to prohibit homicides using such
weapons.
What the jurisdictional hook does accomplish in this case,
however, is to limit prosecutions under section 2252(a)(4)(B) to a
smaller universe of provable offenses. It further reflects
Congress’s sensitivity to the limits upon its commerce power, and
Congress’s express interest in regulating national markets.
C
Ample findings establish the proposition that local possession
of child pornography impacts interstate commerce. In passing the
original 1977 Act, Congress found that child pornography was
harmful to children, and represented “a large industry –
representing millions of dollars in annual revenue – that operates
on a nationwide scale and relies heavily on the use of the mails
and other instrumentalities of interstate and foreign commerce.”24
Even then Congress did not reach for local possession. That
effort, now at issue, came only after the widely reported Meese
Commission extensively documented the interstate, commercial nature
of child pornography.25
These findings show that child pornography is a growing,

24
S. Rep. No. 95-438, 1978 U.S.C.C.A.N. 40, 44.
25
See Part A, supra. The Meese Commission also advocated
expanding the jurisdictional coverage of the then-existing version
of the statute to encompass activities that "affect" commerce. See
Attorney General’s Commission on Pornography, supra, at 475.

9
predatory business that exploits and injures the most vulnerable
among us. Congress found that the child pornography trade operates
across the United States, out of major cities and small towns
alike, to reach consumers nationwide.26
D
We come, therefore, to the fourth Morrison factor – whether or
not the act criminalized has only an attenuated relationship to
interstate commerce. As explained in Morrison, as well as in our

opinion in United States v. Bird,27 and the dissent in United States

v. Hickman,28 the question is the rationality of Congress’s
judgment. We ask whether Congress could rationally have determined
that it must reach local, intrastate conduct in order to
effectively regulate a national, interstate market.
It is not sufficient merely for Congress to analogize the
local conduct it seeks to regulate to some form of interstate
conduct it may permissibly regulate. Such a license would invite
the “house that Jack built” justification for federal authority,
unfettered and nigh unprincipled. Yet the commerce power has
internal limits, that are judicially enforceable. We enforce one
such internal limit today by asking if there is a national market
in the sense that its discrete and local parts are interdependent
and interact. This inquiry lays aside large classes of local
conduct that, while they may present a serious, even “national,”

26
1978 U.S.C.C.A.N. at 42-48.
27
124 F.3d 667 (5th Cir. 1997).
28
179 F.3d 230, 232-33 (5th Cir. 1999) (equally divided en
banc) (Higginbotham, J., dissenting).

10
problem, do not involve a national market. For example, that the
homicide rate is high and presents a national concern does not mean
that Congress may federally regulate purely local murder.
Congress determined that an interstate market in child
pornography exists. No one questions Congress’s authority to
regulate that market directly. Unlike the rape at issue in
Morrison, the possession of child pornography interacts with a
national market on both the supply and demand side. Applying the
commerce power, read through the Necessary and Proper Clause,
Congress can reach purely local possession if it rationally
determines that doing so is necessary to effectively regulate the
national market.
Congress could reach such a conclusion with respect to child
pornography because it may often be impossible to determine whether
a specific piece of child pornography has moved in interstate
commerce. In some cases, law enforcement officials may be
fortunate enough to intercept child pornography en route. Absent
that, however, child pornography does not customarily bear a label
identifying the state in which it was produced. For that reason,
Congress could rationally determine that banning purely local
possession was a necessary adjunct to its effort to ban interstate
traffic. Congress can rationally decide that failing to reach to
the fountainheads will impede its regulation of the interstate
stream.
This is the rationale supporting the federal laws prohibiting

11
possession of certain controlled substances29 and firearms.30 We
explained its limits upon the commerce power in a dissenting
opinion in United States v. Hickman,31 and earlier in United States

v. Bird.32 As we observed in Bird:
[O]ur inquiry must determine not simply whether section

29
See United States v. Lopez, 459 F.2d 949, 951 (5th Cir.
1972) (upholding federal drug laws, stating “where it is apparent
that an attempt to separate interstate activities from intrastate
activities would be a futile exercise substantially interfering
with and obstructing the exercise of the granted power of Congress
to regulate interstate commerce, that attempt is not required”).
Although this case was decided before the Supreme Court's 1995
Lopez decision, courts addressing Commerce Clause challenges to 18
U.S.C. § 841 since that decision have found it constitutional. See
United States v. Edwards, 98 F.3d 1364, 1369 (D.C. Cir. 1996);
United States v. Kim, 94 F.3d 1247, 1249-50 (9th Cir. 1996); United
States v. Bell, 90 F.3d 318, 321 (8th Cir. 1996); United States v.
Lerebours, 87 F.3d 582, 584-85 (1st Cir. 1996).
30
The Supreme Court in Lopez refused to decide the broader
question of whether Congress could forbid the "mere possession" of
firearms. See Lopez, 404 U.S. at 339 n.4. Since the Supreme
Court's Lopez decision, this Court has held that Congress could
forbid the possession of a firearm by a person subject to a
protective order prohibiting domestic violence. See United States
v. Pierson, 139 F.3d 501 (5th Cir. 1998); 18 U.S.C. § 922(g)(8).
In Pierson, this Court found the presence of a jurisdictional hook
a dispositive basis for distinguishing the Supreme Court's Lopez
decision. See Pierson, 139 F.3d at 503. See also United States v.
Knutson, 113 F.3d 27 (5th Cir. 1997) (upholding 18 U.S.C. § 922(o),
which criminalizes possession of a machine gun, against a Commerce
Clause challenge); United States v. Kirk, 105 F.3d 997, 999-1005
(5th Cir. 1997) (en banc) (opinion of Higginbotham, J.) (same).
The dissent's arguments in this case contradict the clear import of
this Court's decisions in the drug and firearms contexts. The logic
underlying the dissent would require a reversal of these decisions,
thereby overturning a vital and established body of federal
protections against criminal conduct.
31
179 F.3d at 232-33.
32
124 F.3d at 667.

12
 248(a)(1) proscribes intrastate activity that has (or
might have) a substantial affect on interstate commerce,
but rather whether there is a national commercial market
in abortion-related services such that the regulated
conduct – considered in light of the size and scope of
the benchmark market – substantially affects interstate
commerce.33

Bird holds, as we again insist today, that in the absence of a
jurisdictional hook itself sufficient to sustain its regulation,
Congress must have as its purpose the regulation of a national
market and a rational basis for concluding that permitting the
proscribed conduct would impair Congress’s ability to regulate that
market.
A true market is inevitably commercial, and is pushed by
supply and demand, whether manifested in swaps or purchase and
sale. The Congress, supported by the findings of the Meese
Commission, found such a market in child pornography. With such a
market we have little hesitation in concluding that where the
product is fungible, such that it is difficult if not impossible to
trace, Congress can prohibit local possession in an effort to
regulate product supply and demand and thereby halt interstate
trade.
IV
In sum, acting pursuant to its commerce power, Congress may
reach intrastate possession in an effort it may rationally conclude
is necessary to control this interstate market. It is not
irrational for Congress to conclude that to regulate a national
commercial market for a fungible good, it must as a practical

33
Id. at 677.

13
matter be able to regulate the possession of that type of good –
possession that in a real economic sense is never wholly “local.”
Local inventories become the source of trading and selling as
familiarity dulls the utility of the pictures.
Congress could reach Filburn’s wheat because the federal
government legitimately sought to support the price of wheat on the
interstate market. Congress had little concern for the few bushels
of wheat in Wickard grown for home consumption. Its intent was
plainly to regulate the national market. That its goal was to
support wheat prices is of no moment. Its means, by necessity, was
control of supply. Our analysis would not differ if Congress’s
regulatory objective had been to end all production of wheat. For
like reasons, Congress can reach Kallestad’s pornography because it
legitimately seeks to eliminate the interstate market for child
pornography. And it is rational to conclude that reaching local
possession is a necessary incident to that objective.
V
We hold that section 2252(a)(4)(B) is facially valid and that
its application to Kallestad in this case falls within Congress’s
power under the Commerce Clause.
AFFIRMED.

14
E. GRADY JOLLY, Circuit Judge, dissenting:

I respectfully dissent. For whatever else it may be cited,

United States v. Lopez at least stands for the proposition that

purely intrastate, non-commercial possession of a non-fungible good

“is in no sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate commerce.”

514 U.S. 549, 567, 115 S.Ct. 1624 (1995). In the light of this

understanding, 18 U.S.C. § 2252(a)(4) cannot constitutionally be

applied to this defendant’s conduct–-the simple local possession of

self-generated child pornography in which there is no suggestion of

commercial activity.

The Supreme Court recently reiterated in United States v.

Morrison that “Lopez’s review of Commerce Clause case law

demonstrates that in those cases where we have sustained federal

regulation of intrastate activity based upon the activity’s

substantial effects on interstate commerce, the activity in

question has been some sort of economic endeavor.” 529 U.S. 598,

120 S.Ct. 1740, 1750 (2000). Like here, the activity in question

there was no “economic endeavor.” The challenged statute in

Morrison was the Violence Against Women Act, which criminalized

even intrastate, local acts of violence. The Court struck down the

statute, stating that “[w]e accordingly reject the argument that

Congress may regulate non-economic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce.
The Constitution requires a distinction between what is truly

national and what is truly local.” Id. at 1754.

Today, the majority has embraced logic the Morrison Court

eschewed. The majority holds that Congress can indeed regulate

non-economic, intrastate criminal conduct (possession of child

pornography), simply because “this reach into local intrastate

conduct was a necessary incident of a congressional effort to

regulate a national market.” It so holds, despite the Morrison

Court’s observation that “thus far in our Nation’s history our

cases have upheld Commerce Clause regulation of intrastate activity

only where that activity is economic in nature.” Id. at 1751.

The majority never asserts that simple possession of self-

generated child pornography is an economic activity. Indeed,

simple possession for personal purposes cannot possibly be so

classified. Instead, the majority’s opinion relies on the fall-

back principle of Wickard v. Filburn to establish that Congress can

reach even non-economic intrastate activity. See 317 U.S. 111, 63

S.Ct. 82 (1942). The majority undertakes such an application of

Wickard, even though Morrison explicitly reminds us that “in every

case where we have sustained federal regulation under Wickard’s

aggregation principle, the regulated activity was of an apparent

commercial character.” Morrison, 120 S.Ct. at 1750, n.4. Because

I can think of no activity less commercial than the simple local

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16
possession of a good produced for personal use only, I believe that

section 2252(a)(4) is unconstitutional as applied to Kallestad’s

conduct.

Neither does the majority persuade me that the requisite

connection to interstate commerce exists in this case because

outlawing local possession of visual depictions curbs interstate

demand for those pictures, thus, according to the majority,

discouraging individuals from entering the interstate market for

child pornography. The majority relies in substantial part on

Wickard for this conclusion. However, the persuasiveness of

Wickard34 in the wake of Lopez and Morrison is questionable in the

analysis of the criminal statute we consider today.35 Moreover, the

facts before this court are distinguishable from those in Wickard.

The Lopez Court noted that Wickard “involved economic activity in

34
We surely do not suggest that Wickard has been overruled by
the Supreme Court since only the Supreme Court can overrule its own
decisions. It cannot be denied, however, that some cases reach a
zenith before fading, sometimes to be reignited at a later date.
35
The Lopez Court noted that while the “broad language” in
Wickard, which the court called “the most far reaching example of
Commerce Clause authority over intrastate activity,” may have
“suggested the possibility of additional expansion, . . . we
decline here to proceed any further.” 514 U.S. at 560, 567.
Rather than expressly reaffirming the decision in Wickard, Lopez
reconsidered that and other prior decisions to conclude that the
regulation of noncommercial intrastate conduct must be “an
essential part of a larger regulation of economic activity, in
which the regulatory scheme would be undercut unless the intrastate
activity were regulated.” Id. at 561.

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17
a way that the possession of a gun in a school zone does not.” Id.

at 560. In the same way, simple possession of child pornography

does not interact with interstate commerce like the possession and

consumption of wheat did in Wickard. In Wickard, the act of

possessing and consuming wheat directly affected the price of wheat

on the national market, and it was Congress’ interest in regulating

the price on that market that constitutionally justified the

regulation of private wheat consumption:

It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a
substantial influence on price and market conditions.
This may arise because being in marketable condition such
wheat overhangs the market and, if induced by rising
prices, tends to flow into the market and check price
increases. . . . Home-grown wheat in this sense competes
with wheat in commerce.

317 U.S. 111, 128.

Congress’ authority to regulate intrastate possession and

consumption of wheat in Wickard derived only from the direct

economic interaction between consumption of home-grown wheat and

the market price of wheat. However, the local possession of self-

generated child pornography does not have such a direct and

substantial affect on an interstate market.36 In the facts before

36
The majority asserts that Wickard stands for the principle
that “when a person produces for their own consumption a product
that is traded in an interstate market,” Congress can regulate
local possession of that product. This expansive interpretation of
Congress’ commerce power has no limit. An interstate market exists
for virtually any product one might possess. Under this

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18
us, Kallestad’s non-commercial, local possession of child

pornography, where no interstate transportation or commercial

transacting occurred, had at most an insubstantial affect on the

interstate market for child pornography.

Nevertheless, the majority attempts to connect simple

possession of pornography with interstate commerce by asserting

that such possession is “never wholly local” because “[l]ocal

inventories become the source of trading and selling as familiarity

dulls the utility of the pictures.” I do not think the majority

can so blithely assume this critical connection to interstate

commerce that provides the essential authority for Congress’

regulation of intrastate conduct, especially when the evidence

shows that no such connection existed in the facts of this case.

Indeed, the evidence shows that Kallestad did not purchase, trade,

sell, or barter the pornography he possessed. Nor does the

evidence show that he had any intention to ever do so. Whatever

weight Wickard should be given after Lopez and Morrison, it cannot

be read to authorize congressional regulation of any intrastate

possession of pornography on the theory that, in some cases, the

possessed material eventually flows in interstate commerce.

formulation, one would be “hard pressed to posit any activity by an
individual that Congress is without power to regulate.” Lopez, 514
U.S. at 564.

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19
 Therefore, in accordance with Lopez and Morrison, we should

hold that this simple local possession of self-generated

pornographic material, where no commercial activity was involved,

no interstate transportation took place, and no congressional

findings support the necessity of such regulation in the framework

of a broader regulatory scheme, is beyond the reach of any

reasonable interpretation of Congress’ Commerce Clause power.

I respectfully dissent from the majority’s contrary

conclusion.

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20