United States v. Rodia

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

10-20-1999

United States v Rodia
Precedential or Non-Precedential:

Docket 98-5522

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Filed October 20, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5522

UNITED STATES OF AMERICA

v.

JOSEPH RODIA
Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 97-cr-00128)
District Judge: Honorable Mary Little Cooper

Argued: July 12, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL,
Circuit Judges.

(Filed October 20, 1999)

LISA VAN HOECK, ESQUIRE
(ARGUED)
Assistant Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

Counsel for Appellant
 FAITH S. HOCHBERG, ESQUIRE
United States Attorney
NORMAN J. GROSS, ESQUIRE
(ARGUED)
Assistant United States Attorney
Office of the United States Attorney
Mitchell S. Cohen Courthouse
Fourth & Cooper Streets
Camden, NJ 08101-2098

GEORGE S. LEONE, ESQUIRE
Assistant United States Attorney
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal requires us once again to determine, in the
wake of United States v. Lopez, 514 U.S. 549 (1995), the
constitutionality of a statute criminalizing an activity that is
not directly linked to interstate commerce. The precise
question before us is whether it was within Congress's
power under the Commerce Clause to enact 18 U.S.C.
S 2252(a)(4)(B), which imposes criminal liability on
individuals who possess child pornography that has not
itself traveled in interstate commerce as long as one of the
materials from which the pornography was created--in this
case, Polaroid film--has so traveled.

Unlike the statute in question in Lopez, this statute has
a jurisdictional element or "hook"--that is, a clause that
purports to ensure that the law only covers activity that
has a substantial effect on interstate commerce. We
conclude, however, that the jurisdictional element in
S 2252(a)(4)(B) does not achieve this goal. Accordingly, we
must consider whether Congress could reasonably have
believed that the intrastate possession of child pornography
that has been made using products that traveled interstate

2
has a substantial effect on the interstate commerce in child
pornography.

Although we are not without misgivings in view of the
breadth of the regulation at issue, we conclude that
Congress rationally could have believed that intrastate
possession of pornography has substantial effects on
interstate commerce. Intrastate possession likely fosters the
possessor's demand for additional child pornography, some
of which will come from interstate sources. Hence,
discouraging the intrastate possession of pornography will
cause some of these child pornographers to leave the realm
of child pornography completely, which in turn will reduce
the interstate demand for pornography--the very activity
Congress wished to suppress through regulation. This point
is buttressed by the fact that Congress has historically
regulated interstate commerce in child pornography, and
that Congress hoped to close a remaining loophole in the
law by criminalizing intrastate possession of the same. We
therefore will affirm the judgment of the District Court
convicting Rodia under S 2252(a)(4)(B).

I. Facts and Procedural History

In 1991, local law enforcement officials in New Jersey
arrested Joseph Rodia and filed state charges against him,
including attempted aggravated sexual assault, endangering
the welfare of a child, and manufacturing child
pornography. After a New Jersey grand jury indicted Rodia
on these charges, he fled and was eventually arrested in
Ohio for sexually assaulting a child there. After pleading
guilty to two counts of endangering the welfare of a child,
he received a four-year sentence. While serving that
sentence in Ohio, federal law enforcement officials brought
a charge against him in the District Court for the District
of New Jersey, alleging a violation of the Child Restoration
and Penalties Act of 1990, 18 U.S.C. S 2252 ("CRPA"),
which criminalizes the possession of child pornography
when the pornography has traveled in interstate commerce
or when the materials from which the pornography was
created traveled in interstate commerce. The material
creating the purported jurisdictional hook in this case was
the Polaroid film with which Rodia's pornographic

3
photographs were taken. It is undisputed that Polaroid film
has never been manufactured in New Jersey and that it
was transported there via interstate commerce.
Before trial, Rodia moved to dismiss the federal
indictment on the ground that Congress had exceeded its
powers under the Commerce Clause in enacting the second
clause of S 2252(a)(4)(B), since that clause regulates the
purely intrastate possession of child pornography. The
District Court denied the motion. Rodia later pled guilty,
admitting that he knowingly possessed numerous
photographs that constituted child pornography, including
three Polaroid photos of naked boys in various sexually
explicit poses. The District Court accepted his plea and
sentenced him to a twenty-one month prison sentence,
followed by three years of supervised release with special
conditions.

Rodia did not preserve his right to appeal by entering a
conditional guilty plea. See Fed. R. Crim. P. 11(a)(2).
However, since the issue presented goes to the jurisdiction
of the District Court, we have jurisdiction over his appeal.
See United States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir.
1995). Our review of the statute's constitutionality is
plenary, though we must respect Congress's ample
discretion to determine the appropriate exercise of its
Commerce Clause authority. See United States v. Rybar,
103 F.3d 273, 278 (3d Cir. 1996). In engaging in this
review, we must ascertain whether Congress "could
rationally conclude that the regulated activity substantially
affects interstate commerce." Id. Our inquiry is restricted to
whether any state of facts--either facts known or facts that
could reasonably be assumed--affords support for that
conclusion. See Pic-A-State PA, Inc. v. Reno, 76 F.3d 1294,
1302 (3d Cir. 1996). If such a set of facts exists, we then
must consider whether "the means chosen by Congress are
reasonably adapted to the end permitted by the
Constitution." Id. (quoting Hodel v. Virginia Surface Mining
& Reclamation Ass'n, 452 U.S. 264, 276 (1981)).

II. The Parties' Contentions

The version of 18 U.S.C. S 2252 that was in place in
1991, when Rodia was arrested, provided in relevant part:

4
 (a) Any person who . . . (4) either . . . (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 involves
the use of a minor engaging in sexually explicit
conduct; and (ii) such visual depiction is of such
conduct; shall be punished as provided in subsection
(b) of this section.

18 U.S.C. S 2252(a)(4)(B) (emphasis added).

Rodia was indicted under the second clause of subsection
(B) of the statute, which grounds jurisdiction solely on the
fact that the materials from which the pornography was
created were shipped in interstate commerce. This is the
only part of the statute he challenges; he does not contest
the constitutionality of the clause regulating pornography
that itself has traveled in interstate commerce. Thus, when
we discuss S 2252, we are referring only to the clause that
prohibits the intrastate possession of child pornography
made from materials that traveled interstate. In formulating
his constitutional challenge, Rodia relies heavily on United
States v. Lopez, 514 U.S. 549 (1995). It is therefore
necessary to summarize that decision here.

A.

In Lopez, the Court struck down the Gun Free School
Zones Act ("GFSZA") on the ground that Congress exceeded
its Commerce Clause power in passing the Act. The GFSZA
made it a federal offense for any individual to knowingly
possess a firearm within a school zone. The Court described
the three broad categories of activity that Congress may
properly regulate--the channels of interstate commerce, the
instrumentalities of interstate commerce, and those
activities that have a substantial relation to interstate
commerce--and noted that, in light of the activity regulated

5
(gun possession), the GFSZA could be upheld, if at all, only
if it fell into the third category. See id. at 559.

In concluding that the statute was unconstitutional
under the third category of regulation, the Court based its
decision on two major grounds and a minor ground. Itfirst
noted that the GFSZA, a criminal statute that had"nothing
to do with `commerce' or any sort of economic enterprise,"
was not a "part of a larger regulation of economic activity,
in which the regulatory scheme could be undercut unless
the intrastate activity were regulated." Id. at 561. Though
the government (and four Justices in dissent) argued that
guns in school zones result in violent crime, which harms
the educational environment and makes for less productive
citizens, the Court found the connection between gun
possession on school grounds and commercial transactions
too attenuated to say that such possession substantially
affected interstate commerce. The Court also rejected the
argument that the costs of crime impact the well-being of
the nation as a whole, since it would follow from that
argument that Congress could regulate all violent crime.

Second, the Court noted that the GFSZA contained "no
jurisdictional element which would ensure, through case-
by-case inquiry, that the firearm possession in question
affects interstate commerce." Id. at 561. The Court thus
sought some guarantee that the behavior being regulated
has a sufficient nexus to interstate commerce once the
underlying facts of the case are proven. Finally, though the
Court acknowledged that Congress is normally not required
to make findings in order to legislate, it commented on the
dearth of congressional findings about the effect of gun
possession on interstate commerce, which left the Court
unable to evaluate the reasonableness of Congress's
judgment. See id. at 562-63.

B.

Rodia's argument is two-pronged. First, while
acknowledging that S 2252 has a jurisdictional hook insofar
as it requires that the materials from which the
pornography has been created have traveled in interstate
commerce, he contends that a statute cannot be upheld

6
against a Commerce Clause challenge simply because it
contains a jurisdictional element. A jurisdictional element,
as the term has been used in and after Lopez, refers to a
provision in a federal statute that requires the government
to establish specific facts justifying the exercise of federal
jurisdiction in connection with any individual application of
the statute. See United States v. Harrington, 108 F.3d 1460,
1465 n.2 (D.C. Cir. 1997); see also Lopez, 514 U.S. at 561
(noting that the Gun-Free School Zones Act "has no express
jurisdictional element which might limit its reach to a
discrete set of firearm possessions that . . . have an explicit
connection with or effect on interstate commerce"); United
States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998) (noting
that a jurisdictional element expressly requires a nexus
between the activity regulated and interstate commerce,
thus ensuring that Congress exercised its Commerce
Clause power to reach a discrete set of criminal acts that
have an explicit connection with or effect on interstate
commerce). Rodia contends that the jurisdictional element
in S 2252(a)(4)(B) fails to ensure that the activity Congress
wanted to regulate has an actual nexus to interstate
commerce, since it does not require that the final product
regulated--child pornography--traveled in interstate
commerce.

Second, Rodia submits that simple intrastate possession
of child pornography does not fit into any of the three
categories of interstate commerce that are proper subjects
of congressional regulation: (i) channels of interstate
commerce; (ii) instrumentalities of interstate commerce;
and (iii) activities that substantially affect interstate
commerce. For the reasons explained infra Part IV and n.3,
categories (i) and (ii) are not at issue in this case. With
regard to the third category, he claims victory on the
grounds that possession of child pornography is not of an
economic or commercial nature, relying on the statute's
legislative history in support of his claim. He emphasizes
this point by making a classic slippery slope argument: If
"Congress can regulate the purely intrastate activity of
Rodia simply because the blank film traveled interstate,
then there would be no activity beyond the power of
Congress to regulate." Def. Br. at 6. If we uphold the
statute, he forcefully argues, Congress could prohibit the

7
shoplifting in New Jersey of a candy bar made in
Pennsylvania, or the rape of a person who at one time has
traveled interstate, simply because there is a trivial
interstate nexus to the intrastate activity being regulated.

The government defends the statute on two grounds.
First, it submits that S 2252(a)(4)(B)'s express jurisdictional
requirement is sufficient to render the statute
constitutional. Second, it contends that even if we deem the
jurisdictional element insufficient to make the statute
constitutional, Congress validly exercised its Commerce
Clause power by attempting to suppress the intrastate
demand for child pornography, which would in turn
substantially affect interstate commerce by decreasing the
demand for the interstate supply of child pornography.

In support of its position, the government points out that
the three courts to decide this question, including two
courts of appeals, have upheld the constitutionality of the
statute. See United States v. Bausch, 140 F.3d 739 (8th Cir.
1998), cert. denied, 119 S. Ct. 806 (1999); United States v.
Robinson, 137 F.3d 652 (1st Cir. 1998); United States v.
Winningham, 953 F. Supp. 1068, 1074 n.13 (D. Minn.
1996). We turn first to the jurisdictional element.

III. The Jurisdictional Element

As we have noted, the government contends that the
presence of the jurisdictional element in S 2252 is by itself
sufficient to render the clause at issue constitutional.
However, in United States v. Bishop, 66 F.3d 569 (3d Cir.
1995), we held:

The mere presence of a jurisdictional element . . . does
not in and of itself insulate a statute from judicial
scrutiny under the Commerce Clause, or render it per
se constitutional. To the contrary, courts must inquire
further to determine whether the jurisdictional element
has the requisite nexus with interstate commerce. We
must, therefore, determine whether the jurisdictional
component in this case limits the statute to items that
have an explicit connection with, or effect upon,
interstate commerce.

8
Id. at 585. We went on to make that determination,
concluding that the carjacking statute's jurisdictional
element ensured that the car involved in the carjacking had
an explicit connection with interstate commerce.

The government refers us to three later cases that, it
contends, establish that we need look no further than the
jurisdictional element. In United States v. Rybar, 103 F.3d
273, 285 (3d Cir. 1996), we noted in passing that the
Supreme Court's decision in United States v. Bass, 404
U.S. 336 (1971), "merely signified that a statute's inclusion
of a jurisdictional element is a condition sufficient to
establish its validity under the Commerce Clause."
However, we made this comment only in response to the
defendant's argument that the absence of a jurisdictional
element in Rybar was fatal to the statute involved in that
case. Indeed, the statute at issue in Rybar contained no
jurisdictional element, and thus this statement about the
effect of the presence of such an element was focused on
the issue before us and is clearly dicta.1 In contrast, our
_________________________________________________________________

1. In addition, we believe that Rybar overstates the holding of Bass. In
Bass, the Court had to interpret a gun possession statute, which applied
to anyone "who receives, possesses, or transports in commerce or
affecting commerce any firearm." The government argued that "in
commerce or affecting commerce" applied only to the verb "transports";
the Court rejected this reading, holding that "in commerce or affecting
commerce" applied also to "possesses" and"receives." The Court did not
state that a formal, jurisdictional element would be sufficient to render
a statute constitutional. Rather, it merely enforced the underlying
constitutional requirement that the activity regulated by federal statute
have some demonstrated nexus with interstate commerce. A later
Supreme Court case discussing Bass supports this reading. In
Scarborough v. United States, 431 U.S. 563 (1977), the Court described
Bass as follows:

Since "[a]bsent proof of some interstate commerce nexus in each
case S 1202(a) dramatically intrudes upon traditional state
criminal
jurisdiction," we were unwilling to conclude, without a "clearer
statement of intention," that Congress meant to dispense entirely
with a nexus requirement in individual cases.

It was unnecessary in Bass for us to decide what would constitute
an adequate nexus with commerce as the Government had made no
attempt to show any nexus at all.

9
ruling in Bishop was directed toward the precise issue we
address.

We also believe that Bishop is sound. A hard and fast
rule that the presence of a jurisdictional element
automatically ensures the constitutionality of a statute
ignores the fact that the connection between the activity
regulated and the jurisdictional hook may be so attenuated
as to fail to guarantee that the activity regulated has a
substantial effect on interstate commerce. See Lopez, 514
U.S. at 561 (implying that jurisdictional elements are useful
only when they can ensure, through a case-by-case inquiry,
that the regulated activity affects interstate commerce);
United States v. Jones, 178 F.3d 479, 480 (7th Cir. 1999)
(noting that the jurisdictional element of S 844(i), even if
proven by the government, did not establish a substantial
connection to interstate commerce; and therefore, looking
beyond the jurisdictional element to assess the statute's
constitutionality); United States v. Pappadopoulos, 64 F.3d
522, 527 (9th Cir. 1995) (illustrating that a statutorily
imposed requirement of a jurisdictional nexus to interstate
commerce will not insulate the statute from judicial review).
We discuss in the margin the other post-Bishop cases on
which the government relies.2
_________________________________________________________________

Id. at 568 (citations omitted). It is a big leap from Bass's specific
holding
--that the Court would read the statute in such a way as to ensure that
the government had to prove a nexus between the gun at issue and
interstate commerce--to the broad proposition that a jurisdictional
element will always guarantee a statute's constitutionality.

2. The government reads United States v. Gaydos, 108 F.3d 505, 508 (3d
Cir. 1997), to stand for the proposition that the simple presence of a
jurisdictional element rendered the statute at issue constitutional.
There,
however, the panel simply concluded that the jurisdictional element
contained in the federal arson statute, 18 U.S.C.S 844(i), ensured that
the statute only applied to arson that substantially affected interstate
commerce. The government also relies on United States v. Gateward, 84
F.3d 670 (3d Cir. 1996), which further explicated Bass and Scarborough.
However, in Gateward, we did no more than conclude that the specific
jurisdictional element in the case adequately performed the function of
guaranteeing the nexus between firearm possession and commerce. The
panel stated:

10
In this case, the jurisdictional element--the requirement
that precursor materials like film or cameras moved in
interstate commerce--is only tenuously related to the
ultimate activity regulated: intrastate possession of child
pornography. A jurisdictional element is only sufficient to
ensure a statute's constitutionality when the element either
limits the regulation to interstate activity or ensures that
the intrastate activity to be regulated falls within one of the
three categories of congressional power. See Bishop, 66
F.3d at 594 (Becker, J., dissenting); see also United States
v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) ("[I]n Lopez, the
Court simply did not state or imply that all criminal
statutes must have such an element, or that all statutes
with such an element would be constitutional, or that any
statute without such an element is per se
unconstitutional."); Andrew St. Laurent, Reconstituting
United States v. Lopez: Another Look at Federal Criminal
Law, 31 COLUM. J. L. & SOC. PROBS. 61, 112 (1998) ("A
purely nominal jurisdictional requirement, that some entity
or object involved in the crime be drawn from interstate
commerce, does nothing to prevent the shifting of[the
federal/state] balance in favor of the federal government. As
has been amply demonstrated, virtually all criminal actions
in the United States involve the use of some object that has
passed through interstate commerce.").

As a practical matter, the limiting jurisdictional factor is
almost useless here, since all but the most self-sufficient
child pornographers will rely on film, cameras, or chemicals
that traveled in interstate commerce and will therefore fall
within the sweep of the statute. At all events, it is at least
doubtful in this case that the jurisdictional element
adequately performs the function of guaranteeing that the
final product regulated substantially affects interstate
_________________________________________________________________

We do not understand Lopez to undercut the Bass/Scarborough
proposition that the jurisdictional element [which required that
the
gun have been possessed `in or affecting commerce'] keeps the felon
firearm law well inside the constitutional fringes of the Commerce
Clause.

84 F.3d at 671.

11
commerce. Because we will affirm the statute on other
grounds, we proceed to examine the nexus between
interstate commerce and the activity regulated.

IV. Does Intrastate Possession of Child Pornography Affect
Interstate Commerce?

As discussed above, see supra Part II.A., the Supreme
Court has identified three broad categories of activity that
Congress can regulate using its commerce power: (i) the
channels of interstate commerce; (ii) instrumentalities of
interstate commerce; and (iii) those activities having a
substantial relation to interstate commerce. See Lopez, 514
U.S. at 559. Neither of the parties argues that category (i)
is at issue. The government contends that we should
analyze S 2252 under categories (ii) and (iii). However, our
description of "instrumentalities" of interstate commerce in
Bishop makes clear that we are not confronted with the
congressional regulation of such instrumentalities in this
case.3 We therefore turn to category (iii) and to the heart of
_________________________________________________________________

3. In Bishop, we stated:

Instrumentalities differ from other objects that affect interstate
commerce because they are used as a means of transporting goods
and people across state lines. . . . It would be anomalous,
therefore,
to recognize [trains, planes, and highways as] categories of
instrumentalities but to suggest that the similarly mobile
automobile
is not also an instrumentality of interstate commerce.

66 F.3d at 588. Though the dissent disagreed with that conclusion, it,
too, emphasized that "courts have, to date, appropriately limited
[category two's] application to congressional regulation of
instrumentalities actually engaged in interstate commerce, or objects
such as railcars . . . , which are integrally related to an interstate
commerce network." Id. at 597 (Becker, J., dissenting); see also
Overstreet v. North Shore Corp., 318 U.S. 125 (1943) (treating a bridge as
an instrumentality); Shreveport Rate Cases, 234 U.S. 342 (1914)
(interstate rail carriers); Southern R.R. Co. v. United States, 222 U.S.
20
(1911) (railcars). Thus, category (ii) is inapt, and we will consider the
statute only under category (iii), referring to the relevant inquiry in
this
case as whether it was reasonable for Congress to believe that the
behavior regulated substantially affects interstate commerce. See United
States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cert. denied, 119 S. Ct.

12
the matter: whether Congress had a rational basis for
believing that the intrastate possession of pornography has
a substantial effect on interstate commerce. We analyze
this question through the prism of Wickard v. Filburn, 317
U.S. 111 (1942), and its progeny. We also consider the
relevance of the fact that Congress has long regulated
interstate commerce in child pornography, and that, in
enacting the subsection of S 2252 at issue here, Congress
was seeking to close a loophole in that statute so as to
better achieve its goal. After discussing "substantial effect,"
we will address the reasonableness of Congress's chosen
means as a way to achieve its desired goals.

A.

There is no dispute about the veritable tautology that
interstate trafficking in child pornography has an effect on
interstate commerce. Nevertheless, a brief summary of the
legislative history of S 2252, in which congressional findings
explicated the role of child pornography in interstate
commerce, offers an important background to the ultimate
issue we must decide: whether Congress could have
believed that the intrastate possession of pornography
substantially affects interstate commerce. With a clear
understanding of the role child pornography plays in
interstate commerce, it is easier to comprehend both
Congress's efforts to regulate the industry and its
subsequent attempt in 1990 to close a loophole in those
regulations by enacting the clause of S 2252 that is at issue
here. We discuss these findings even though they were not
made in direct support of the 1990 amendments, for
reasons set forth in the margin.4
_________________________________________________________________

806 (1999) (same); United States v. Robinson, 137 F.3d 652 (1st Cir.
1998) (analyzing and upholding constitutionality ofS 2252 under
category (iii)); but see United States v. Winningham, 953 F. Supp. 1068,
1074 n.13 (D. Minn. 1996) (finding S 2252 constitutional under category
(ii)).

4. Despite the fact that the findings contained in the extensive
legislative
history of the statute were not made in relation to the 1990 amendments
to S 2252, we think that, under Supreme Court and Third Circuit

13
In 1978, the Senate Report accompanying the passage of
the original Protection of Children Against Sexual
Exploitation Act (the precursor to the CRPA) stated:

There is a substantial amount of trafficking in the
United States today in pornographic materials [of
children] . . . . The hearings and staff investigations
. . . have led us to the following conclusions: that child
pornography and child prostitution have become highly
organized, multimillion dollar industries that operate
on a nationwide scale [and] that such prostitution and
the sale and distribution of such pornographic
materials are carried on to a substantial extent
through the mails and other instrumentalities of
interstate and foreign commerce.

S. Rep. No. 95-438, at ___ (1977), reprinted in 1978
U.S.C.C.A.N. 70, ___. A 1986 amendment to the Act
included legislative findings that stated: "[C]hild
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." Pub. L. No. 99-
591, 100 Stat. 3341-74 (1986). A 1988 amendment, which
broadened S 2252(a)(1) to encompass the transmission by
computer of child pornography in interstate commerce,
highlights the fact that child pornography had begun to
travel in interstate commerce by yet another means,
emphasizing the increasingly commercial nature of child
pornography.

Congress's conclusion that a substantial interstate
market in child pornography exists seems an eminently
_________________________________________________________________

precedent, we should consider these congressionalfindings as we review
the statute's constitutionality. See Maryland v. Wirtz, 392 U.S. 183, 190
n.12 (1968) (holding that where Congress had earlier passed related
legislation with relevant findings, subsequent legislation was
"presumably based on similar findings and purposes with respect to the
areas newly covered"); Rybar, 103 F.3d at 279-81 (considering legislative
history unrelated to the specific provision at issue in that case and
relying on the "history of the legislative history" of federal gun control
to
illustrate the link between the behavior regulated and its effect on
commerce).

14
reasonable one. But since the statutory subsection at issue
in this case regulates purely intrastate possession of child
pornography, we must explore the relationship between
intrastate possession of child pornography and interstate
commerce in child pornography.

B.

In the wake of the Interstate Commerce Act and the
Sherman Antitrust Act, which ushered in a new era of
federal regulation, the Supreme Court subjected laws
passed pursuant to the Commerce Clause to a
"direct/indirect" test, which allowed Congress only to
regulate activities that directly affected interstate
commerce. See A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495, 546 (1935). However, it soon became
apparent that, if the Commerce Clause were read to forbid
Congress from regulating anything but those goods that
actually traveled (and those commercial activities that
actually took place) between states, Congress's attempts to
regulate interstate commerce would be severely hindered
because some local activities or goods are so intertwined
with interstate commerce that it is necessary to control the
local behavior to ensure the efficacy of interstate regulation.
See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37
(1937).

In Wickard v. Filburn, the Supreme Court confronted this
problem head on. Filburn, a farmer, sought a declaration
that the Agricultural Adjustment Act, which imposed
penalties on crops produced in excess of the Act's quotas,
was unconstitutional. Filburn alleged that Congress had
exceeded its Commerce Clause power in enacting a statute
that extended federal regulation to wheat production that
was intended not for commerce but only for personal
consumption on his farm. See 317 U.S. at 118. The Court
held that Congress had the authority to regulate singular
instances of intrastate activity when such events, taken in
the aggregate, might ultimately have a substantial effect on
interstate commerce. See id. at 125 ("[E]ven if appellee's
activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by

15
Congress if it exerts a substantial economic effect on
interstate commerce."); see also Rybar, 103 F.3d at 283.

Since that time, the Court has repeatedly affirmed that
the Commerce power extends to

those activities intrastate which so affect interstate
commerce, or the exertion of the power of Congress
over it, as to make regulation of them appropriate
means to the attainment of a legitimate end, the
effective execution of the granted power to regulate
interstate commerce.

Hodel, 452 U.S. at 277 (quoting United States v.
Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)). Lopez
teaches, however, that the Wickard line of cases "may not
be extended so as to embrace effects upon interstate
commerce so indirect and remote that to embrace them, in
view of our complex society, would effectually obliterate the
distinction between what is national and what is local and
create a completely centralized government." Lopez, 514
U.S. at 556-57.

In Rybar, we relied on Wickard's reasoning to reject a
Commerce Clause challenge to 18 U.S.C. S 922(o), which
makes it unlawful "for any person to transfer or possess a
machinegun." The defendant, a machine gun owner, argued
that the statute failed the "substantially affects" test, since
it governed purely intrastate possession of machine guns.
See Rybar, 103 F.3d at 277-78. After reviewing the
legislative history of gun control, we concluded that
Congress might well have contemplated that the regulated
activity of machine gun possession, when occurring in the
aggregate, substantially affected commerce, and that by
instituting a "demand-side measure to lessen the stimulus
that prospective acquisition would have on the commerce in
machine guns," Congress did not exceed the limits of the
Commerce Clause. Id. at 283.

In other words, it was permissible for Congress to
attempt to reduce the demand for machine guns, even by
regulating purely intrastate behavior, because the effect of
that reduction in intrastate demand might well be to limit
the flow of those weapons into states, thus reducing the
interstate commerce in those weapons. See also United

16
States v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998)
(concluding that S 922(o) "is a reasonable measure for
choking off the traffic in machine guns, which may be
constricted on the supply side through prohibition of
transfers as well as on the demand side by criminalizing
possession"). We acknowledged a similar principle in
Bishop, where we stated, "[I]f a criminal activity is rationally
believed to be one of the conduits of a nationwide and
international pipeline of illegal activity, Congress may
justifiably step in and regulate that activity although it is
wholly intrastate." 66 F.3d at 585. Even more to the point
is Robinson, a case factually indistinguishable from Rodia's,
where the First Circuit considered market demands when it
held:

By outlawing the purely intrastate possession of child
pornography in S 2252(a)(4)(B), Congress can curb the
nationwide demand for these materials. We believe that
such possession, "through repetition elsewhere," helps
to create and sustain a market for sexually explicit
materials depicting minors.

137 F.3d at 656 (quoting Lopez, 514 U.S. at 567).

C.

There is a subtle transformation at work here. In
Wickard, the goods at issue--the wheat produced and
consumed by the farmer--were being substituted for the
interstate wheat that the statute attempted to regulate. The
supply and demand analysis there, which resulted in the
conclusion that intrastate growing of wheat had a
substantial effect on the interstate market in wheat,
required few assumptions: home-grown wheat acts as a
direct substitute for wheat purchased in commerce,
including interstate commerce. However, as the cases just
cited indicate, courts often have adopted Wickard's generic
principle--that intrastate activity, if repeated, may
substantially affect interstate commerce--in situations that
are economically distinct from Wickard and that require a
greater number of assumptions before the connection
between intrastate and interstate activity becomes clear.
For instance, many courts have applied the Wickard

17
principle to criminal statutes, concluding that suppressing
the intrastate demand for a good (for example, by
criminalizing possession of guns or drugs) would have a
substantial impact on interstate commerce by affecting the
supply of that good. See Franklyn, 157 F.3d at 96; Proyect
v. United States, 101 F.3d 11, 13-14 & n.1 (2d Cir. 1996);
Bishop, 66 F.3d at 584-85.

In many cases, this will be a reasonable assumption. We
note, however, that the latter economic model is different
from Wickard's substitution analysis, a fact that many
courts have glossed over. In addition, a number of courts
have applied Wickard's aggregation concept to all activities,
economic and non-economic, without acknowledging"that
Lopez approvingly discussed the aggregation principle only
in conjunction with economic activity." United States v.
Hickman, 179 F.3d 230, 238 (5th Cir. 1999) (per curiam)
(Higginbotham, J., dissenting). Nevertheless, while there
may not be a precise analytical fit between substitution
situations like Wickard and supply-affecting situations like
the one at issue here, the weight of authority has assumed
that Wickard's generic principle may be applied across
economic frameworks, to both criminal and civil
regulations, so long as there is a strong nexus between the
intrastate and interstate activity. We so reasoned in Rybar,
and will do the same here.

D.

In this case, we think that Congress could have rationally
reasoned as follows: Some pornographers manufacture,
possess, and use child pornography exclusively within the
boundaries of a state, and often only within the boundaries
of their own property. It is unrealistic to think that those
pornographers will be content with their own supply, hence
they will likely wish to explore new or additional
pornographic photographs of children. Many of those
pornographers will look to the interstate market as a source
of new material, whether through mail order catalogs or
through the Internet. Therefore, the possession of
"homegrown" pornography may well stimulate a further
interest in pornography that immediately or eventually
animates demand for interstate pornography. It is also

18
reasonable to believe the related proposition that
discouraging the intrastate possession of pornography will
cause some of these child pornographers to leave the realm
of child pornography completely, which in turn will reduce
the interstate demand for pornography.5

Another way to describe the nexus between intrastate
and interstate activity here is in terms of the notion of
addiction, which is explicated in the legislative history
accompanying the 1996 amendments to S 2252. 6 The
Senate Report stated that
_________________________________________________________________

5. Congress also reasonably could have believed that the clause at issue
would affect the supply side of the child pornography market. Congress
found that many producers of child pornography shipped their end
product interstate. See S. Rep. No. 95-438, at ___ (1977), reprinted in
1978 U.S.C.C.A.N. 70, ___ (finding that child pornography had become a
highly organized, multimillion dollar industry that operated on a
nationwide scale and that the sale and distribution of such pornographic
materials were carried on to a substantial extent through the mails and
other instrumentalities of interstate commerce). Given that conclusion,
Congress could have believed that before the 1990 amendments,
commercial manufacturers of pornography were insufficiently deterred
from making and then selling their products interstate, since the only
stage at which their operation was illegal was at the selling stage. By
making it illegal to possess pornography manufactured from materials
that passed interstate, even when the pornography itself had not passed
interstate, Congress made it easier for law enforcement officials to stem
the flow of manufactured--but not yet distributed--pornography, thus
curbing the supply of child pornography at its source, before it was
released into the interstate market. While this rationale supports the
purpose behind S 2252(a)(4)(B), we do not rely on it because such
manufacturers are covered by another part of S 2252--to wit,
S 2252(a)(3)(B), which makes it illegal knowingly to sell or to possess
with
intent to sell child pornography that has passed in interstate commerce
or that has been produced using materials that have traveled in
interstate commerce. We mention this to illustrate that demand-side
measures often have supply-side effects as well.

6. As we discussed supra n.4, we will consider legislative history
relating
to S 2252, even if that history was not developed for the specific
amendment to the statute at issue here. Though the use of subsequent
legislative history is often disfavored as a method of determining an
earlier Congress's legislative intent, see Chapman v. United States, 500
U.S. 453, 464 n.4 (1991), courts have occasionally found such legislative

19
 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.

S. Rep. No. 104-358, at ___ (1996), reprinted at 1996 WL
506545. That report further explained the addictive nature
of pornography: "[P]ornography `is an addiction that
escalates, requiring more graphic or violent material for
arousal.' . . . [T]he use of child pornography in time
desensitizes the viewer . . . [and the user] escalates to more
_________________________________________________________________

history useful. See Sykes v. Columbus & Greenville Ry., 117 F.3d 287,
293-94 (5th Cir. 1997) ("Although a committee report written with regard
to a subsequent enactment is not legislative history with regard to a
previously enacted statute, it is entitled to some consideration as a
secondarily authoritative expression of expert opinion."); see also
Strickland v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 18
(1st Cir. 1995) ("We conclude that the value, if any, of such post-
enactment materials should be decided case by case."). Where, as here,
Congress's subsequent fact-finding supplements, rather than conflicts
with, its earlier statements; where we are not using later congressional
statements as a way to interpret earlier language but rather as evidence
of the kind of research the 1990 Congress had before it; and where the
later fact-finding was made as part of an overall explanation of the
purpose behind the statute rather than in reference to one particular
subsection thereof, we think that subsequent fact-finding can be
considered, though not given a large role, in the rational basis
determination.

Even if we chose not to consider the subsequent history in our
analysis of what facts Congress had before it in 1990, the subsequent
history would be material for a quite different reason. To the extent that
the 1996 legislative history sets out a rational explanation for why
Congress might have believed that restricting intrastate pornography
made from interstate materials would diminish the demand for interstate
pornography, we may consider the statement not as subsequent
legislative history but merely as evidence that there could be a rational
basis for this belief. See Pic-A-State PA, Inc. v. Reno, 76 F.3d 1294,
1302
(3d Cir. 1996) (noting that in Commerce Clause challenges, the court's
inquiry "must be restricted to the issue of whether any state of facts
either known or which could reasonably be assumed affords support for
it").

20
deviant material." Id. at ___ (noting also that "the existence
of and traffic in child pornographic images . . . inflames the
desires of . . . child pornographers who prey on children,
thereby increasing the creation and distribution of child
pornography and the sexual abuse and exploitation of
actual children who are victimized as a result of the
existence and use of these materials").

We think that this common sense understanding of the
demand-side forces we have described supra helps to
demonstrate the strong nexus between the intrastate
possession of and the interstate market in child
pornography.7 We believe that this nexus provides a
limiting principle of the type sought in Lopez , see 514 U.S.
at 556-57, 564-65, for the nexus present here will not be
present in criminal regulations that attempt to limit or ban
behavior that does not involve an exchange of goods, such
as murder or assault. This limit is particularly important in
the criminal context, which is an area that traditionally has
been regulated by the states. For these reasons, we
_________________________________________________________________

7. See also United States v. Cardoza, 129 F.3d 6, 12 (1st Cir. 1997),
decided in the context of the Youth Handgun Safety Act ("YHSA"), which
prohibits the intrastate sale, transfer, delivery, and possession of
handguns to and by juveniles, where the Court of Appeals noted:

[W]e think the possessory prong of the YHSA . . . is `an essential
part of a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate activity
were regulated.' This is so because the YHSA was designed expressly
to `stop[ ] the commerce in handguns with juveniles nationwide. . .
.'
Part of this regulatory approach involves the suppression of the
demand for such handguns. The YHSA can be thus seen as
criminalization of the two points where the prohibited commerce
finds its nexus; the demand for the firearms (possession), and the
sale or transfer designed to meet that demand. The two prohibitions
go hand in hand with one another. Invalidation of one half of the
equation would likely have deleterious effects on the efficacy of
the
legislation.

(citations omitted) (alteration in original); see also United States v.
Kenney, 91 F.3d 884, 890 (7th Cir. 1996) ("Permitting unregulated
intrastate possessions and transfers of machine guns. . . indirectly
undermines, via a market theory, the effectiveness of the federal attempt
to regulate interstate commerce in machine guns.").

21
conclude that Congress rationally could have believed that
child pornography that did not itself travel in interstate
commerce has a substantial effect on interstate commerce,
and is thus a valid subject of regulation under the
Commerce Clause.

E.

We do not believe that the conclusion just reached
supports the broad proposition that, since intrastate
possession of a good so often has a substantial effect on the
interstate market in the same good, Congress is effectively
entitled to regulate any intrastate activity involving a good
when there is a larger interstate market for it. The presence
of two additional factors limits our holding. First, because
the problem of child pornography is one that has been
addressed by federal statutes for over twenty years,
S 2252(a)(4)(B) does not constitute a "sharp break" in the
pattern of federal legislation of the kind that troubled the
Court in Lopez. See 514 U.S. at 563.

In addition, as we demonstrate below the subsection of
S 2252(a)(4)(B) at issue here, which serves to close a
loophole left open by the original statute, plays a critical
role in maintaining the effectiveness of the overall statutory
scheme, a factor that was absent in Lopez. See Lopez, 514
U.S. at 561 (noting that "S 922(q) is not an essential part of
a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate
activity were regulated"); see also Pic-A-State, 76 F.3d at
1302-03 (holding that Congress could have concluded that
the [Interstate Wage] amendment at issue was necessary to
effectuate the purposes of the original act, since the
amendment closed an unforeseen loophole in that act). In
the case of child pornography, Congress has long regulated
interstate commerce in child pornography as a way to
abolish child pornography entirely, and the subsection of
the statute at issue here was added in 1990 because the
effectiveness of that regulatory scheme was being undercut
by the child pornographers who continued to manufacture
their own pornography intrastate.

Specifically, it may be difficult to ascertain whether
pornography found in an individual's home was produced

22
by that individual, acquired from a friend intrastate, or
purchased in interstate commerce. Like controlled
substances, and unlike weapons that carry identifying
numbers, pornography may often be fungible. To the extent
that one piece of child pornography is fungible with
another, federal efforts to arrest users of pornography will
be hindered by an inability to determine whether a
particular piece of pornography has traveled interstate or
not. That is, child pornography cannot be effectively
regulated without federal control over both the interstate
and local versions of the activity. In our view, this loophole-
closing purpose illuminates and supports the congressional
perception of the probable effect of intrastate pornography
possession on the demand for interstate child pornography.
However, before finalizing our conclusions on the issue, we
must address Rodia's argument that intrastate possession
of pornography is a non-commercial activity.

F.

In support of his argument that S 2252 is
unconstitutional, Rodia points out that several pieces of the
statute's legislative history acknowledge that most child
pornographers do not possess pornography for commercial
purposes, and that, as with the GFSZA invalidated in
Lopez, Congress therefore is attempting to regulate an
activity that has no relation to commerce.

First, he invokes the 1984 amendments to the statute,
which, in the wake of the Supreme Court's decision in New
York v. Ferber, 458 U.S. 747 (1982) (holding that child
pornography is entitled to no First Amendment protection),
eliminated the requirement that the child pornography have
been created "for the purpose of sale or distribution for
sale." The House Report noted:

Many of the individuals who distribute materials
covered by 18 U.S.C. 2252 do so by gift or exchange
without any commercial motive and thus remain
outside the coverage of this provision. . . . Since the
harm to the child exists whether or not those who
initiate or carry out the schemes are motivated by
profit, the subcommittee found a need to expand the

23
 coverage of the act by deleting the commercial purpose
requirement.

H.R. Rep. No. 98-536, ___ (1983), reprinted in 1984
U.S.C.C.A.N. 492, ___. Second, the 1986 legislative history
detailed that this change was made because "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." H.R. Rep. No. 99-910, at ___ (1986), reprinted in
1986 U.S.C.C.A.N. 5952, ____. Third, the Justice
Department comments included in House Report 536 state:

Utilization of 18 U.S.C. 2252 has been inhibited by the
fact that the statute covers the distribution of child
pornography only for commercial purposes. It is a fact,
however, that many, perhaps even most, of the
individuals who distribute materials covered by 18
U.S.C. 2252 do so by trade or exchange, without any
commercial purpose and thereby avoid violating this
provision. . . . Nevertheless, the harm to children
involved in child pornography schemes exists whether
or not those who initiate or carry out these schemes
have a profit motive or commercial purpose.

H.R. Rep. No. 98-536, at ___ (1983), reprinted in 1984
U.S.C.C.A.N. at 502.

These findings illustrate that not all child pornographers
produce pornography with the intent that it enter the
stream of commerce. Nevertheless, such congressional
findings do not foreclose a conclusion that intrastate
possession of pornography affects interstate commerce.
Congress's findings that some child pornography is
noncommercial do not undermine its findings that child
pornography is a multimillion dollar, nationwide industry.
Rather, the former findings merely highlight that many
people participate in the industry, and that a large number
of those involved are independent operators who create
child pornography for their own use and, perhaps, the use
of their acquaintances. Where, as here, a class of activities
is regulated (the shipment or exchange of child
pornography) and the class is within the reach of federal
power, we cannot rely on the fact that some of the class is

24
engaged in non-commercial activity to invalidate the entire
statute. See Perez v. United States, 402 U.S. 146, 154
(1971) (noting that where Congress is appropriately
regulating a class of activities, the courts have no power to
excise, as trivial, individual instances of the class).

Moreover, as we noted in Bishop, Congress is not
foreclosed from regulating an activity with links to
interstate commerce even though some people engaging in
that activity may not have a commercial motive. In Bishop,
we explained, "While the [Department of Justice] report
notes that economic gain is not the only or even the
principal motive behind carjacking, the fact that additional
motives exist is not relevant to our inquiry." 66 F.3d at 582
n.18. Indeed, Wickard embodies this principle since the
wheat at issue there had been grown for personal
consumption, not for sale; as discussed above, the Court
upheld the statute, finding the intent of the wheat grower
irrelevant. See 317 U.S. at 118 (upholding the statute even
though it extended federal regulation "to [wheat] production
not intended in any part for commerce but wholly for
consumption on the farm"). More recently, in discussing
what "affects interstate commerce" means in the RICO
context, the Court noted, "An enterprise surely can have a
detrimental influence on interstate or foreign commerce
without having its own profit-seeking motives." National
Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 258 (1994).

Finally, many cases from this and other courts of appeals
have made clear that the specific activity that Congress is
regulating need not itself be objectively commercial, as long
as it has a substantial effect on commerce. See Bishop, 66
F.3d at 581 (noting that Congress could have believed that
it had to regulate carjacking, "whether or not it was strictly
`commercial' or `economic,' " as one aspect of its response to
the national commercial problem of criminal auto theft); see
also National Ass'n of Home Builders v. Babbitt, 130 F.3d
1041, 1049 (D.C. Cir. 1997) ("A class of activities can
substantially affect interstate commerce regardless of
whether the activity at issue--in this case the taking of
endangered species--is commercial or noncommercial."),
cert. denied, 118 S. Ct. 2340 (1998); United States v.
Bongiorno, 106 F.3d 1027, 1031 (1st Cir. 1997) (noting that

25
the Court consistently has interpreted the Commerce
Clause "to include transactions that might strike a lay
person as `noncommercial' ").

Therefore, the fact that a substantial portion of child
pornographers possess pornography for non-commercial
purposes does not automatically place the activity outside
the realm of congressional regulation, especially since the
activity has an obvious commercial element as well.

V. Rationality of the Means-Ends Connection

The final step in our inquiry is to determine whether the
means chosen by Congress are reasonably adapted to the
ends permitted by the Constitution. See Hodel, 452 U.S. at
276. We believe that there is a rational connection between
the regulatory means (punishing the intrastate possession
of child pornography) and the asserted ends (prohibiting
interstate commerce in child pornography and reducing the
inevitable harm to children that stems from their
involvement in child pornography). See, e.g., United States
v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998) (finding that
prohibiting possession of machine guns was reasonable
means of freezing, and ultimately eliminating, the largely
interstate market for them); United States v. Cardoza, 129
F.3d 6, 12 (1st Cir. 1997) (finding that Congress's decision
to punish both the supply (sale or transfer) and demand
(possession) sides of the handgun market was a means
reasonably calculated to achieve its end).

This is so even though Congress's means were not crafted
with ultimate precision. Before S 2252 was amended to
include the subsection at issue here, it was costly for
pornographers to traffic in pornography across state lines,
though it was costless (at least under federal law) to
manufacture and use pornography intrastate. Section
2252(a)(4)(B) made it as costly to engage in the latter
activity as in the former. Congress's amendment thus
would likely have had two effects. First, some
pornographers would decide that the costs of continuing to
make and possess child pornography were too high, and
those pornographers would leave the industry entirely--a
result Congress clearly intended. Second, a reasonable

26
pornographer might conclude that, after the enactment of
S 2252(a)(4)(B), he had no incentive to continue to act
purely intrastate, since he was committing a crime whether
he made or used pornography that had passed interstate or
that had remained intrastate. Thus, some "homegrown"
pornographers might have turned to the interstate market,
increasing the interstate demand for child pornography.

We are troubled by the lack of express Congressional
findings about the effect of intrastate possession of child
pornography on interstate commerce. We acknowledge,
however, that

[o]ur ability to imagine ways of redesigning the statute
to advance one of Congress' ends does not render it
irrational. . . . The history of congressional attempts to
address the problem . . . provides sufficient reason to
defer to the legislative judgment that [the statute in
question] is an appropriate answer.

Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 19
(1990) (quoting Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 469 (1981)). More importantly, we are satisfied--
in view of the teachings of Wickard's progeny, buttressed by
the fact that Congress has long legislated in this area and
was conscious of the need to close a loophole in a statute
governing interstate commerce--that S 2252(a)(4)(B) was a
reasonable exercise of Congress's power under the
Commerce Clause. The judgment of the District Court will
be affirmed.

27
ROTH, Circuit Judge, concurring:

I write separately because, although I agree with the
majority that we should affirm Rodia's conviction, I do not
agree with the separate analysis which the majority gives
(1) to the jurisdictional element in Part III of its opinion and
(2) to the effect of child pornography on interstate
commerce in Part IV. I believe that both issues should be
considered together. Their interrelationship is helpful in
determining the constitutionality of the statute.

I do accept the majority's conclusion that the fact that a
statute has a jurisdictional element may not be sufficient in
and of itself to establish the statute's constitutionality.
When, however, we are presented with a statute, such as
the present one, which has been repeatedly held to cover
conduct that affects interstate commerce, we must keep the
previous history in mind when we examine the
jurisdictional element of an amendment to the statute.

We are not in the present case plowing new ground, as
was the situation in United States v. Lopez, 514 U.S. 549,
563 (1995), where there were no congressional findings that
the possession of guns in a school zone substantially
affected interstate commerce. Id. Here, we do have
legislative findings to aid judicial evaluation of the effect of
child pornography on interstate commerce. Cf. United
States v. Rybar, 103 F.3d 273, 279 (3d Cir. 1996)
(determining that "there are legislative findings to aid
judicial evaluation of the effect of machine guns on
interstate commerce.")

As the majority points out in Part IV, legislative history
concerning predecessor and successor child pornography
statutes supports the reasonableness of Congress's
determination that a nexus exists between child
pornography and interstate commerce. Because we have
such a history, the jurisdictional element of S 2252(a)(4)(B)
should be examined with that history in mind. These
legislative findings are relevant not only to the majority's
analysis in Part IV of the effect of child pornography on
interstate commerce. They are also relevant to the
evaluation of the jurisdictional element in Part III because
that jurisdictional element is directed at the same evil as

28
the other provisions of the statute -- interstate trafficking
in child pornography. I would defer to Congress's judgment
that the regulation of materials, such as blank Polaroid film,1
that have been in the stream of interstate commerce, is
integral to its ability to regulate the interstate trafficking in
child pornography -- even in an instance when thatfilm is
used to create child pornography that is possessed
intrastate.

For the above reasons, in the context of the present case,
I do not agree with the statement of the majority that "[a]
jurisdictional element is only sufficient to ensure a statute's
constitutionality when the element either limits the
regulation to interstate activity or ensures that the
intrastate activity to be regulated falls within one of the
three categories of congressional power. Slip Op. at 11." I
believe the above statement is too limited. We cannot
examine the jurisdictional element in isolation. An
additional factor in the analysis of whether the jurisdiction
element limits the regulation to interstate activity must be
the nature of the underlying activity, here child
pornography, and prior determinations of the effect that the
activity in question has on interstate commerce.

As I have described above, I believe that the jurisdictional
element here does limit the regulation to activity affecting
interstate commerce because legislative findings have
established the connection between child pornography and
interstate commerce; the further requirement that the
material on which the pornography was produced have
_________________________________________________________________

1. The essential components of child pornography are film and video.
Without these basic components, pornographic images of children--
which even Rodia concedes Congress may regulate under the Commerce
Clause if transported interstate--could not be created. Moreover, instant
film, such as the Polaroid film at issue in this case, is particularly
important to both possessors and manufacturers of pornography;
commercial processing of pornographic images places the creator of the
pornography in great jeopardy of being reported to authorities by
commercial developers. Thus, while Polaroid film may seem a relatively
odd commodity for the federal government to regulate, the onus for this
anomaly lies upon those who manufacture and possess child
pornography.

29
moved in interstate commerce will be proved on a case by
case basis.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

30