[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 18, 2005
No. 03-13639 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00257-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 18, 2005)
Before TJOFLAT, RONEY and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
On February 5, 2003, following a jury trial in the United States District
Court for the Middle District of Florida, Alvin Smith was convicted of one count
of producing child pornography in violation of 18 U.S.C. § 2251(a)1 and one count
of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).2 The
court sentenced him to 188 months in prison and 60 months of supervised release.
Smith appealed and filed his opening brief on May 4, 2004. On October 1, 2004,
in United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004), this court held that
purely intrastate possession of child pornography was not converted “into an
activity subject to Commerce Clause regulation” simply because “the disks on
which the pornography was ultimately copied traveled, when blank, to Florida
from someplace outside of Florida.” Id. at 1068. Maxwell necessarily casts doubt
on Smith’s conviction because the asserted basis for federal jurisdiction over his
1
Section 2251(a) provides:
Any person who employs, uses, persuades, induces, entices, or coerces any minor
to engage in . . . any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct, shall be punished . . . if such person knows or
has reason to know that such visual depiction will be transported in interstate or
foreign commerce or mailed, if that visual depiction was produced using materials
that have been mailed, shipped, or transported in interstate or foreign commerce
by any means, including by computer, or if such visual depiction has actually been
transported in interstate or foreign commerce or mailed.
2
Section 2252A(a)(5)(B) provides:
Any person who . . . knowingly possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains an image of child
pornography that has been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer, or that was produced
using materials that have been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer . . . shall be punished. . . .
2
offenses is that the film, photo paper, and film processor used to produce the
pictures he possessed had traveled in interstate commerce sometime before being
used to produce them.
Before determining whether Maxwell controls this case, however, we must
first determine whether it is relevant at all in light of another recent decision of
this court. In United States v. Levy, 379 F.3d 1241, reh’g en banc denied, 391
F.3d 1327 (11th Cir. 2004), we held that the unexceptional rule that issues not
briefed are deemed waived applies even to the exceptional case where the
defendant seeks to raise a claim that was squarely foreclosed by our own precedent
at the time his opening brief was filed but has since been made viable by an
intervening decision. Id. at 1241-42; see also Levy, 391 F.3d at 1336 (Tjoflat, J.,
dissenting from the denial of rehearing en banc) (observing that it was “certainly
understandable” that the defendant did not raise the “waived” claim in his opening
brief given that our own precedent “unequivocally rejected the same argument”).
Under Levy, Maxwell does not apply unless Smith advanced a Maxwell-type
claim in his opening brief. In his supplemental letter memorandum,3 Smith argues
that two of the issues raised in his opening brief fairly encompass the Maxwell
3
After oral argument, we requested that counsel submit supplemental letter memoranda
addressing the extent to which Maxwell and Levy should inform our resolution of this appeal.
3
issue; the Government disagrees. Although Smith’s brief is not a model of clarity,
in light of the principle that we “liberally read briefs to ascertain the issues raised
on appeal,” United States v. Starke, 62 F.3d 1374, 1379 (11th Cir. 1995), we
conclude that Smith has sufficiently presented the Maxwell issue. Accordingly,
Levy does not preclude him from relying on Maxwell, although we will review the
issue only for plain error because Smith did not raise it at trial.
In Part I, we briefly recount the facts of this case. In Part II, we address the
Levy issue. In Part III, we address Smith’s Maxwell claim.
I.
In March 2002, the Tampa Police Department executed a search warrant on
the home of the defendant’s mother. The search was part of an investigation of the
defendant’s brother, who lived at the residence and was suspected of possessing
and selling drugs. Accordingly, the focus of the warrant was drugs and drug
paraphernalia. Upon entering the residence, a narcotics dog alerted the officers to
a lockbox that was slightly ajar. One of the officers opened the lockbox and
discovered a number of photographs that were pornographic in nature. Some of
the pictures depicted what appeared to be “very, very young girls having sex . . .
with a male who [was later] identified as the defendant.” At trial, the defendant’s
mother testified that the lockbox belonged to Smith, although he was not living at
4
the residence at the time of the search because he was in prison.
Police later determined that the lockbox contained 1768 pictures. Almost
all of the photos were sexually explicit, though many were of persons above the
age of eighteen. As part of the investigation, an officer in the department’s sex
crimes and child abuse unit began visiting local shelters for runaways and asking
counselors whether they recognized any of the girls in the pictures. Eventually,
the officer was able to locate a girl who was in a number of photos that dated
November 1999, at which time the girl was still fourteen years old.4 She
confirmed that the photos were of her, and, from another photo found in the
lockbox, she identified Smith as the man who had taken them.
At trial, the girl testified that she was living on the street as a runaway in
November 1999 when Smith approached her and her then-seventeen-year-old
boyfriend, Dominick. Dominick got into Smith’s car, and Smith and Dominick
left and returned a few minutes later. Dominick told her that she could make some
money if she would allow Smith to take some pictures of her in her underwear,
and she agreed to do so. She and Dominick then got back into Smith’s car and
went with him to a house where he retrieved a camera and some film. The three of
4
The Government introduced a proof sheet containing twenty-six thumbnails of the girl
and a number of the photos depicted on the sheet. The Government also introduced a birth
certificate from the victim’s native Mexico that gave her date of birth as March 12, 1985.
5
them then went to a hotel, and Smith went inside and paid for a room. Only Smith
and the girl actually went into the room; Dominick stayed outside.
Once inside the room, Smith told the girl to take off all of her clothes.
Although Dominick had told her that she would not have to take off her
underwear, she did as Smith instructed. Smith then began taking pictures; he
instructed her how to pose a number of times and even physically spread her
genitalia himself for a particularly graphic shot. Afterward, he gave her $60 or
$70 and left, and she and Dominick spent the night in the room.
In addition to the testimony of the witness and several of the officers
involved in the investigation, the Government introduced a recording of a phone
conversation between Smith and his mother. Smith placed the call while
incarcerated at the Hillsborough County Jail in June 2002. At one point in the
conversation, he complained, “I mean, there is no law against havin’ no pictures,
and there is no law against takin’ no pictures. But they tryin’ to make it seem like
I went out and took pictures of a fourteen year old girl and I knew it.” Another
part of the conversation went as follows:
LUCILLE SMITH: A person should be able to take pictures or
whatever if they want to.
ALVIN SMITH: Yeah. It ain’t like I went out, just . . . went out and
and and kidnapped somebody and took it. . . .
LUCILLE SMITH: And anyway, them pictures that you took, the
6
girls must have wanted you to take ’em, or else they wouldn’t of let
you took ’em.
ALVIN SMITH: Of course they did. But yeah, though they tryin’ to
make it seem like it’s such a crime, such a crime. . . .
....
ALVIN SMITH: . . . I told her, you know, just they takin’ it too
personal. I mean, times have changed.
LUCILLE SMITH: And I’d of told her, well, now looky here. I
couldn’t of took them pictures if them girls didn’t want me to take
’em. They posed and everything for me to take ’em. It’d of been
different if you just took it without they, uh, their acknowledgment.
ALVIN SMITH: I know.
To establish the statutes’ jurisdictional element—i.e., that the pornography
“was produced using materials that have been mailed, shipped, or transported in
interstate or foreign commerce”—the Government called the Vice-President of
Photo Operations for Eckerd’s Drugs. She testified that some of the photos were
printed on Kodak paper that Eckerd’s received from Rochester, New York, and
processed by equipment that it received from California.
At the close of the evidence, the defense moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29. As to the possession count, the
defense argued that there was insufficient evidence that Smith knew that the girl
was less than eighteen years of age. The defense also argued that there was
insufficient evidence to establish the jurisdictional element of either count. The
court denied the motion, and sent the case to the jury. The jury returned a verdict
7
of guilty on both counts. The verdict included specific findings that the
pornography was produced using film, photo paper, and a film processor that had
traveled in interstate or foreign commerce.
II.
According to the Supreme Court, “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . . pending on direct review
or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93
L. Ed. 2d 649 (1987). In this circuit, however, this principle does not apply if the
defendant did not advance a claim based on the “new rule” in his opening brief on
appeal. If the “new rule” is announced after the defendant’s opening brief is filed,
it will be applied retroactively only if the defendant made a similar argument in his
initial brief, for we will not allow him to substitute or supplement his initial brief
or petition for rehearing in order to raise the claim. See, e.g., United States v.
Njau, 386 F.3d 1039, 1041-42 (11th Cir.2004) (letter submitted under Federal
Rule of Appellate Procedure 28(j)); United States v. Hembree, 381 F.3d 1109,
1110 (11th Cir.2004) (substitute or amended principal brief); United States v.
Curtis, 380 F.3d 1308, 1310-11 (11th Cir.2004) (supplemental brief); Levy, 379
F.3d at 1241-42 (petition for rehearing). Indeed, the Levy rule applies even if
Supreme Court vacates our initial decision and remands the case for
8
reconsideration in light of the very case that announces the “new rule.” United
States v. Ardley, 242 F.3d 989, 990, reh’g en banc denied, 273 F.3d 991 (11th
Cir.2001). Therefore, despite the fact that Maxwell was decided only after Smith
filed his opening brief, its holding is irrelevant to our disposition of this case
unless Smith’s opening brief can be read to make a Maxwell-type argument.
In his supplemental letter memorandum, Smith contends that two of the
issues raised in his opening brief encompass a Maxwell-type claim. A cursory
review of the brief suggests that this is not the case. Smith’s statement of issues
vaguely frames these claims as “the district court erred in instructing the jury on
the elements of the charges” and “in denying [his] motion for a judgment of
acquittal.” Moreover, Smith does not cite United States v. Morrison, 529 U.S.
598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), United States v. Lopez, 514 U.S.
549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), or any other case addressing the
scope of the Federal Government’s authority under the Commerce Clause. Indeed,
the arguments to which Smith points us rely exclusively on First Amendment
cases. It is clear that Smith’s primary argument in these two sections is that the
district court erred by failing to instruct the jury that knowledge of the victim’s age
is an essential element of both §2252A(a)(5)(B) and §2251(a) and that there was
no evidence that Smith was aware that the victim was under eighteen years of age.
9
At least one passage of this section, however, all but hits the Maxwell claim
on the head. Smith argues:
[W]hile Congress has authority to pass laws affecting interstate and
foreign commerce, Congress does not have authority to proscribe
[sic] general criminal statutes. Smith contends in order for the [Child
Pornography Prevention Act] to be constitutional under the
Commerce Clause, the government must prove more than he took
photos in Tampa, Florida, and developed the photos in Tampa,
Florida, for personal possession, but the government must prove that
producing or possession of photographs had a material affect [sic] on
interstate commerce, and that Smith knew the photographs were
developed using materials shipped in interstate or foreign commerce.
Over the next few pages, Smith contends that his conviction must be reversed
because the Government presented no evidence that he knew that the materials
used to produce the pictures traveled in interstate commerce. He also briefly
argues that the “facts cannot support [that] he was a ‘producer’ as the evidence
only shows photography for personal use rather than distribution and sale.”
In his reply brief, Smith broadly asserts that “[t]he Government essentially
attempts to limit the knowledge requirement for a penal statute while expanding
the authority of Congress to proscribe [sic] general criminal statutes.” He also
reiterates his claim that the Government should have been required to prove both
that he was aware that the materials used to produce the pornography had traveled
in interstate commerce and that his “possession of the photographs had a material
10
effect on interstate commerce.” Finally, he attempts to clarify his argument
regarding the statutory term “producing”:
Section 2251(a) is a charge for people in the business of making child
pornography, which with an interstate or foreign nexus becomes a
matter under the authority of Congress under the Commerce Clause,
but applying Section 2251(a) to Smith was unconstitutional because
Smith had nothing to do with producing child pornography if Section
2251(a) were to be constitutionally applied to Smith.
Giving Smith the benefit of the doubt, we think that this last argument is that §
2251(a) is beyond the authority of Congress under the Commerce Clause unless
the term “producing” is interpreted to refer to commercial production.5
Our principle that “briefs are read liberally with respect to ascertaining what
issues are raised on appeal” is longstanding. Kincade v. Gen. Tire & Rubber Co.,
635 F.2d 501, 504 (5th Cir. Jan. 30, 1981);6 accord Starke, 62 F.3d at 1379;
Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994); United States v.
Milam, 855 F.2d 739, 743 (11th Cir. 1988); FSLIC v. Haralson, 813 F.2d 370, 373
n.3 (11th Cir. 1987). Only those “[i]ssues that clearly are not designated in the
5
Levy applies to reply briefs as well. Levy, 379 F.3d at 1244. Therefore, Smith’s reply
brief would be irrelevant were there no hint of a Maxwell-type claim in his initial brief; however,
because Smith’s opening brief appears to contain such a claim, we may consider “counsel’s
amplification of his position in the reply brief and at oral argument.” Starke, 62 F.3d at 1379. At
oral argument, counsel explicitly argued that Smith’s conviction was unconstitutional under
Maxwell and, not surprisingly, that this was part of the argument made in his initial brief.
6
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
11
initial brief ordinarily are considered abandoned.” Starke, 62 F.3d at 1379. Thus,
even when it has been “extremely difficult to discern from [a defendant’s] initial
brief exactly what issues he raises on appeal,” we have “liberally read” that brief
and also considered “counsel’s amplification of his position in the reply brief and
at oral argument” in order to identify the issues presented. Id. And in Kincade,
supra, we reasoned that even a few abbreviated descriptions of an argument are
ordinarily sufficient to raise it on appeal, at least where other parts of the brief do
not contain “express indications” that the appellant does not intend to advance that
argument. 635 F.2d at 504-05.
Applying this principle to the instant case, we conclude that Smith’s initial
brief sufficiently raised the Maxwell issue. Smith specifically argued that in order
to prosecute him under its Commerce Clause authority, “the government must
prove more than he took photos in Tampa, Florida, and developed the photos in
Tampa, Florida, for personal possession, but the government must prove that
producing or possession of photographs had a material affect [sic] on interstate
commerce.” Cf. Maxwell, 386 F.3d at 1061 (“we review Maxwell’s conduct
independently and determine that its link to a substantial effect on interstate
commerce, if any, is exceedingly attenuated”); id. at 1068 (holding that the mere
fact that “the disks on which the pornography was ultimately copied traveled,
12
when blank, to Florida from someplace outside of Florida” does not transform
purely intrastate criminal activity “into an activity subject to Commerce Clause
regulation”). He also made the related argument that the statutes were
unconstitutional unless their references to pornography production were
interpreted to apply only to commercial production. Cf. id. (noting that the
Government did not allege or prove any commercial purpose). In light of the fact
that Maxwell was decided only after briefing in this case was completed, we read
these claims liberally to encompass the issue decided in that case. It is, of course,
helpful to the court if litigants cite Commerce Clause cases to support their
Commerce Clause arguments, but we will not deem Smith’s argument waived
simply because counsel chose to rely on First Amendment cases instead.
III.
The Government argues that even if we reach the Maxwell issue our review
is limited to plain error because Smith failed to raise the issue at trial. Smith’s
attorney conceded the same at oral argument. On Smith’s motion for a judgment
of acquittal, there was some discussion of the Commerce Clause. Primarily,
Smith’s counsel argued that the Government had failed to establish the statutory
jurisdictional hook, but at one point she did go so far to argue that “this is a case
where the government is stretching this interstate commerce nexus as far as it can
13
and we believe it—far enough to break it.” She also argued that, under “this set of
circumstances, it is a stretch that there’s any interstate commerce nexus at all, let
alone one strong enough to meet the burden for federal prosecution.” A reading of
the entire transcript, however, suggests that counsel was making only a statutory
interpretation argument, namely, that Congress did not intend to reach cases like
this one under the relevant statutes. This impression is confirmed by the Assistant
U.S. Attorney’s response: “Congress has spoken. And they put directly in the
statute that this is precisely the kind of interstate nexus the United States could
use. . . . It is right in the statute. And this court would have to amend the statute in
order to agree with [the defendant’s] argument.” Moreover, when the district
judge denied Smith’s motion, he stated, “This is not the time and place, I think,
and perhaps not the statute to make the Lopez argument.” If counsel was, in fact,
making a constitutional argument, this would have been the time and place to
clarify her position for the record. In light of her failure to do so, and appellate
counsel’s concession at oral argument, we will review the Maxwell issue for plain
error only.
Under Federal Rule of Criminal Procedure 52(b), “[a] plain error that affects
substantial rights may be considered even though it was not brought to the court’s
attention.” “We have discretion to correct an error under the plain error standard
14
where (1) an error occurred, (2) the error was plain, (3) the error affected
substantial rights, and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Duncan, __ F.3d __, __ (11th
Cir. 2004) (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770,
1777-79, 123 L. Ed. 2d 508 (1993)). The error must be “plain”at the time of
appellate consideration; the defendant is not required to establish that it was plain
at the time of trial.7
7
In Olano, the Supreme Court did “not consider the special case where the error was
unclear at the time of trial but becomes clear on appeal because the applicable law has been
clarified.” Instead, it stated simply that, “[a]t a minimum, a court of appeals cannot correct an
error pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S. at 734,
113 S. Ct. at 1777. Subsequently, in Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544,
137 L. Ed. 2d 718 (1997), the Court held that “where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal . . . it is enough that an error be ‘plain’ at the time
of appellate consideration.” Id. at 468, 117 S. Ct. at 1549. Because the law at the time of
Smith’s trial was “unclear” rather than “settled and clearly contrary to” him, this case presents
the issue that Olano reserved judgment on rather than the one that Johnson explicitly decided.
See generally Maxwell, 386 F.3d at 1068 n.25 (noting a circuit split in similar cases).
Pre-Johnson, we broadly stated that “error is ‘plain’ . . . where the ‘plainness’ of error
becomes apparent on direct review.” United States v. Kramer, 73 F.3d 1067, 1074 n.16 (11th
Cir. 1996). But Kramer was not a “special case” of the sort described in Olano; rather, it
presented the issue explicitly decided in Johnson. See Kramer, 73 F.3d at 1074. Post-Johnson,
we considered the Olano “special case” issue and held that it was appropriate to evaluate the
plainness of the error based on the law at the time of appeal rather than as of the time of trial.
United States v. Humphrey, 164 F.3d 585, 587-88 & nn.2 & 5 (11th Cir. 1999); see also United
States v. Prieto, 232 F.3d 816, 823 (11th Cir. 2000) (“For it to be ‘plain,’ the error must either
have been clear under the law at the time the error was made, or clearly contrary to the law at the
time of the appeal.”).
In contrast, the Ninth Circuit has limited Johnson to its narrow holding: if the law is
merely “unsettled” at the time of trial, whether the error was “plain” will be determined under
that unsettled law. United States v. Turman, 122 F.3d 1167, 1170-71 (9th Cir. 1997). The court
reasons that Johnson’s apparent concern—that evaluating error as of the time of trial would lead
to trial “counsel’s inevitably making a long and virtually useless laundry list of objections to
rulings that were plainly supported by existing precedent,” Johnson, 520 U.S. at 468, 117 S. Ct.
15
A.
We first conclude that, under Maxwell, error occurred because Smith’s
purely intrastate, non-commercial production and possession of child pornography
is not subject to Commerce Clause regulation. We begin with the simple principle
that “Congress can legislate only within the ambit of the specific powers the
Constitution confers on it.” Maxwell, 386 F.3d at 1053-54. The Constitution
grants Congress the authority “[t]o regulate Commerce with foreign Nations, and
among the several States.” U.S. Const. art. I, § 8, cl. 3. In Lopez, the Supreme
Court explained that there are “three broad categories of activity that Congress
may regulate under its commerce power”:
First, Congress may regulate the use of the channels of interstate
at 1549—is inapplicable if the law was not settled at the time of trial. Turman, 122 F.3d at 1170-
71. In practice, of course, this is the same as no plain error review at all, as error will never be
“plain” under “unsettled” law. Thus, the defendant is obliged to object if the law is unsettled,
and if he does not he has waived the objection forever.
“Under the prior panel rule, we are bound by the holdings of earlier panels unless and
until they are clearly overruled en banc or by the Supreme Court.” Swann v. S. Health Partners,
Inc., 388 F.3d 834, 837 (11th Cir. 2004). “But, the prior panel rule does not extend to dicta.” Id.
Arguably, Humphrey does not “hold” that error need only be “plain” at the time of appeal in a
case such as this one, as the Humphrey panel decided against the defendant even under that more
generous standard. See, e.g., Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004)
(“Dictum is a term that has been variously defined as a statement that neither constitutes the
holding of a case, nor arises from a part of the opinion that is necessary to the holding of the
case.”). Even if we assume, though, that we are not bound by Humphrey, we would evaluate
cases such as this one under current law because this approach has the advantage of avoiding the
necessity of distinguishing between cases in which “the law at the time of trial was settled and
clearly contrary to the law at the time of appeal” on the one hand and cases in which it was
merely “unsettled” on the other.
16
commerce. Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities. Finally, Congress’ commerce authority includes
the power to regulate those activities having a substantial relation to
interstate commerce, i.e., those activities that substantially affect
interstate commerce.
Lopez, 514 U.S. at 558-59, 115 S. Ct. at 1629-30 (citations omitted). As in
Maxwell, we have no difficulty concluding that the challenged statutes govern
neither the channels nor the instrumentalities of interstate commerce. See
Maxwell, 386 F.3d at 1055. Although Smith, unlike Maxwell, was convicted for
production under § 2251(a) in addition to possession under § 2252A(a)(5)(B), this
distinction does not bring his conduct within either “Lopez 1” or “Lopez 2,” as the
production of child pornography has no more to do with the channels of interstate
commerce than mere possession does, and “the Government did not establish that
the proscribed images were ‘things in interstate commerce.’” Id. (quoting Lopez,
514 U.S. at 558, 115 S. Ct. at 1629).
Therefore, Congress has the power to proscribe Maxwell’s conduct only if it
is subject to regulation under “Lopez 3,” i.e., only if it “substantially affects”
interstate commerce. In United States v. Morrison, drawing on its earlier decision
in Lopez, the Supreme Court outlined four factors that are important to this
question: First, we must determine whether the challenged statute has anything “to
17
do with ‘commerce’ or any sort of economic enterprise, however broadly one
might define those terms.” Morrison, 529 U.S. at 610, 120 S. Ct. at 1749-50
(quoting Lopez, 514 U.S. at 561, 115 S. Ct. at 1624). Indeed, “a fair reading of
Lopez shows that the noneconomic, criminal nature of the conduct at issue was
central to [the] decision in that case.” Morrison, 529 U.S. at 610, 120 S. Ct. at
1750. Second, we consider whether the statute contains an “express jurisdictional
element which might limit its reach to a discrete set of [cases] that . . . have an
explicit connection with or effect on interstate commerce.” Id. at 611-12, 120 S.
Ct. at 1750-51 (quoting Lopez, 514 U.S. at 562, 115 S. Ct. at 1624). Third,
congressional findings, if relevant, may inform our inquiry. Morrison, 529 U.S. at
612, 120 S. Ct. at 1751. Finally, Morrison directs us to consider the degree of
attenuation between the activity and the purported effect on commerce. Id. at 612-
13, 120 S. Ct. at 1751.8 With these factors in mind, we must determine whether
there is anything about Smith’s case that can distinguish it from Maxwell for
Commerce Clause purposes. Because there is no significant difference between
Smith’s possession and Maxwell’s possession, our analysis will focus on Smith’s
8
The first and fourth Morrison factors are “the most important ones. An activity that is
utterly lacking in commercial or economic character would likely have too attenuated a
relationship to interstate commerce and would, accordingly, not be subject to regulation under
the Commerce Clause.” United States v. McCoy, 323 F.3d 1114, 1119 (9th Cir. 2003).
18
intrastate, non-commercial production of child pornography.
1.
As in Maxwell, “we discern nothing commercial or economic” about
Smith’s conduct. Maxwell, 386 F.3d at 1056. Wickard v. Filburn, 317 U.S. 111,
63 S. Ct. 82, 87 L. Ed. 122 (1942), “is perhaps the most far reaching example of
Commerce Clause authority over intrastate activity,” Lopez, 514 U.S. at 560, 115
S. Ct. at 1630, and yet Smith’s conviction, if upheld, would reach much further. In
Wickard, the Supreme Court upheld a federal regulatory program that restricted
the amount of wheat a farmer might produce not only for sale and distribution, but
also for consumption on his own farm. An Ohio farmer challenged the statute on
the ground that Congress lacked the power to regulate his purely local production
and consumption and its minimal indirect effect on interstate commerce. See
Wickard, 317 U.S. at 113-19, 63 S. Ct. at 83-86. The Court, however, rejected his
argument and explained why the statute was a permissible method of regulating
interstate commerce:
The maintenance by government regulation of a price for wheat
undoubtedly can be accomplished as effectively by sustaining or
increasing the demand as by limiting the supply. The effect of the
statute before us is to restrict the amount which may be produced for
market and the extent as well to which one may forestall resort to the
market by producing to meet his own needs. That appellee’s own
contribution to the demand for wheat may be trivial by itself is not
19
enough to remove him from the scope of federal regulation where, as
here, his contribution, taken together with that of many others
similarly situated, is far from trivial.
It is well established by decisions of this Court that the power
to regulate commerce includes the power to regulate the prices at
which commodities in that commerce are dealt in and practices
affecting such prices. One of the primary purposes of the Act in
question was to increase the market price of wheat and to that end to
limit the volume thereof that could affect the market. 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. But if we assume
that it is never marketed, it supplies a need of the man who grew it
which would otherwise be reflected by purchases in the open market.
Home-grown wheat in this sense competes with wheat in commerce.
The stimulation of commerce is a use of the regulatory function quite
as definitely as prohibitions or restrictions thereon. This record
leaves us in no doubt that Congress may properly have considered
that wheat consumed on the farm where grown if wholly outside the
scheme of regulation would have a substantial effect in defeating and
obstructing its purpose to stimulate trade therein at increased prices.
Id. at 127-29, 63 S. Ct. at 90-91 (citations and footnote omitted).
In other words, the Wickard regulation sought to maintain national market
prices by controlling supply and demand. The Court noted that “[c]ommerce
among the states in wheat is large and important,” that “wheat [was] raised in
every state but one,” that “[t]he wheat industry [had] been a problem industry for
some years,” and that in the absence of regulations wheat prices would have been
greatly affected by the world market. Id. at 125-26, 63 S. Ct. 89-90. Because this
20
regulation was so plainly intended to regulate commerce, the Court held that it was
appropriate to consider the “far from trivial” aggregate effect on the market of all
consumption of home-grown wheat rather than the isolated effect of a single Ohio
farmer. Id. at 127-28, 63 S. Ct. 90; see also id. at 127, 63 S. Ct. at 90 (“The effect
of consumption of homegrown wheat on interstate commerce is due to the fact that
it constitutes the most variable factor in the disappearance of the wheat crop.”).
Whereas the Wickard statute regulated an interstate market indirectly
through regulation of purely local production, the same cannot be said of §
2251(a) or § 2252A(a)(5)(B). These statutes “make[] no effort to control national
trade by regulating intrastate activity. Instead, [they] attempt[] to regulate primary
conduct directly, even within state borders.” Maxwell, 386 F.3d at 1057. Even if,
in the aggregate, offenders like Smith somehow impact an interstate market by
producing child pornography for their own use, “Congress is clearly not concerned
with the supply of child pornography for the purpose of avoiding surpluses and
shortages or for the purpose of stimulating its trade at increased prices.” Id. The
conclusion is thus inevitable that the statutes under which Smith was convicted are
not concerned “with ‘commerce’ or any sort of economic enterprise, however
broadly one might define those terms.” Morrison, 529 U.S. at 610, 120 S. Ct. at
1749-50 (quoting Lopez, 514 U.S. at 561, 115 S. Ct. at 1624). “As the regulated
21
activity . . . is not commercial, Wickard’s aggregation analysis is not applicable.”
Raich v. Ashcroft, 352 F.2d 1222, 1230 (9th Cir. 2003), cert. granted, 124 S. Ct.
2909, 159 L. Ed. 2d 811 (2004); see also Morrison, 529 U.S. at 611 n.4, 120 S. Ct.
at 1750 n.4 (“in every case where we have sustained federal regulation under the
aggregation principle in [Wickard], the regulated activity was of an apparent
commercial character”). Wickard is thus readily distinguishable, as the statute it
sustained was far more obviously a regulation of commerce. We are not inclined
to expand the limits of the federal commerce power beyond what the Supreme
Court has suggested to be its outer limits.
2.
As in Maxwell, the Government relies on a statutory jurisdictional hook to
establish federal jurisdiction over Smith’s offenses: the pictures were “produced
using materials that [had] been mailed, shipped, or transported in interstate or
foreign commerce.” 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B). In Maxwell, we held
that this jurisdictional hook was “patently insufficient to ensure the statute’s
constitutional application.” Maxwell, 386 F.3d at 1063. We will not reiterate all
that we said there, as the point can be made briefly: A jurisdictional hook is
constitutionally significant only if it will “ensure, through case-by-case inquiry,
that the [offense] in question affects interstate commerce.” Lopez, 514 U.S. at
22
561, 115 S. Ct. at 1631. Where, as here, Congress seeks to regulate under “Lopez
3,” the hook is only significant if it essentially requires the Government to prove
that the offender’s conduct substantially affects interstate commerce. The
jurisdictional element used in both § 2251(a) and § 2252A(a)(5)(B), however, “not
only fails to limit the reach of the statute[s] to any category or categories of cases
that have a particular effect on interstate commerce, but, to the contrary, it
encompasses virtually every case imaginable, so long as any modern-day
photographic equipment or material has been used.” United States v. McCoy, 323
F.3d 1114, 1124 (9th Cir. 2003) (evaluating an identical jurisdictional element in
18 U.S.C. § 2252(a)(4)(B)). As such, the fact that Smith’s pictures were
“produced using materials that [had] been mailed, shipped, or transported in
interstate or foreign commerce” does not affect our constitutional analysis.9
3.
In Maxwell, we reviewed the legislative history of § 2252A and some
related statutory provisions—including 18 U.S.C. § 2251, see Maxwell, 386 F.3d
9
We express no opinion on the statutes’ other jurisdictional hooks. 18 U.S.C. § 2251(a)
(“if such person knows or has reason to know that such visual depiction will be transported in
interstate or foreign commerce or mailed . . . or if such visual depiction has actually been
transported in interstate or foreign commerce or mailed”); 18 U.S.C. § 2252A (“Any person who
knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography that has been mailed, or shipped or
transported in interstate or foreign commerce . . . .”).
23
at 1066 n.24—and “[found] nothing to persuade us that possessing child
pornography produced with materials transported in interstate commerce is an
activity that has a substantial effect on interstate commerce.” Id. at 1067.
“Instead, the vast majority of the findings support the broader
proposition”—which we are certainly prepared to accept—“that child pornography
(even that which is generated by computer without actual people) is bad and
harmful to children.” Id. at 1065.
A recent First Circuit opinion succinctly summarizes the additional
legislative history and congressional findings relevant to 18 U.S.C. § 2251(a):
When Congress originally passed the Protection of Children
Against Sexual Exploitation Act of 1977 . . . it supported the
legislation with findings that “child pornography . . . has become [a]
highly organized, multimillion dollar industr[y] that operate[s] on a
nationwide scale . . . [and that] the sale and distribution of such
pornographic materials are carried on to a substantial extent through
the mails and other instrumentalities of interstate and foreign
commerce.”
In 1984, Congress amended the Act to, inter alia, eliminate the
requirement that the production, receipt, transportation, or
distribution of child pornography be for a “pecuniary profit.”
Congress did so because it found that this commercial purpose
requirement created an enforcement gap: “Many of the individuals
who distribute materials covered [by the statute] do so by gift or
exchange without any commercial motive and thus remain outside the
coverage of this provision.” Noting that “[g]enerally, the domestic
material is of the ‘homemade’ variety, while the imported material is
produced by commercial dealers,” Congress determined that the
statutory regime must be updated to ensure effective prosecution of
24
producers and distributors.
Congress amended the Act again [in 1986 after] finding that
“child exploitation has become a multi-million dollar industry,
infiltrated and operated by elements of organized crime, and by a
nationwide network of individuals openly advertising their desire to
exploit children.”
In 1996, Congress amended the Act to redefine child
pornography . . . . In passing those amendments, Congress found that
“the existence of a traffic in child pornographic images . . . inflames
the desires of child molesters, pedophiles, and child pornographers
who prey on children, thereby increasing the creation and distribution
of child pornography. . . .” The Senate Report also explained that
“prohibiting the possession and viewing of child pornography will
encourage the possessors of such material to rid themselves of or
destroy the material, thereby helping . . . to eliminate the market for
the sexual exploitative use of children.”
Finally, Congress amended the Act again in 1998, establishing
jurisdiction for the production of child pornography if the “visual
depiction was produced using materials that have been mailed,
shipped, or transported in interstate or foreign commerce by any
means,” which is the provision now before us. Congress offered two
reasons for this amendment. First, it wanted the new jurisdictional
element of the production statute to mirror the existing jurisdictional
element of the possession statutes. Second, Congress was concerned
about federal law enforcement’s current inability to prosecute “a
number of cases where the defendant produced the child pornography
but did not intend to transport the images in interstate commerce.”
United States v. Morales-De Jesus, 372 F.3d 6, 10-12 (1st Cir. 2004) (citations and
footnotes omitted). We will comment on each of these findings separately.
We have already addressed the 1977 findings in Maxwell. These findings
“remark[] only on interstate child pornography and teach[] nothing about the
effects of intrastate child pornography or noncommercial child pornography for
25
that matter.” Maxwell, 386 F.3d at 1066. The same can be said of the 1986
findings. That we are here concerned with noncommercial production for personal
use rather than mere noncommercial possession is not significant. The substance
of these findings is merely that a multimillion dollar interstate industry exists, not
that noncommercial producer-consumers such as Smith substantially affect it. To
say that such findings support federal jurisdiction in this case is the equivalent of
saying that Congress can, for example, regulate backyard cookouts simply because
a multibillion-dollar interstate restaurant industry exists.
The 1984 findings refer to the problem of individuals who trade, lend, or
otherwise distribute child pornography without a commercial purpose. If Smith
had been prosecuted for such noncommercial distribution of child pornography,
then these findings might be relevant. They do not, however, establish that the
noncommercial production of child pornography for the producer’s own use
substantially affects interstate commerce.
The 1996 findings relate solely to the “addiction theory”—i.e., the theory
that a person possessing intrastate child pornography could develop an increasing
appetite for more such materials that eventually affects the interstate market
substantially—adopted by the Third Circuit in United States v. Rodia, 194 F.3d
465, 478-79 (3d Cir. 1999). We previously rejected this theory in Maxwell, and
26
our reasoning applies with equal force here. The theory simply “provides too
attenuated a link to interstate commerce and would require us ‘to pile inference
upon inference in a manner that would bid fair to convert congressional authority
under the Commerce Clause to a general police power of the sort retained by the
States.’” Maxwell, 386 F.3d at 1061 (quoting Lopez, 514 U.S. at 567, 115 S. Ct.
at 1634).
Finally, Congress’s rationale for amending the statute in 1998 to add the
jurisdictional provision at issue does nothing to explain how producer-consumers
such as Smith substantially affect interstate commerce. Indeed, in 1998 Congress
merely explained that under the old version of the statute it had been unable to
reach some conduct that it wished to proscribe. That Congress wanted to
prosecute more child pornographers is understandable, but it has little to do with
interstate commerce.
In sum, the relevant congressional findings do little to persuade us that
activity such as that at issue in this case substantially affects interstate commerce.
“[T]he existence of congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation.” Morrison, 529 U.S. at 614,
120 S. Ct. at 1752. “[S]imply because Congress may conclude that a particular
activity substantially affects interstate commerce does not necessarily make it so.”
27
Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 311, 101 S. Ct.
2352, 2391, 69 L. Ed. 2d 1 (1981) (Rehnquist, J., concurring in the judgment).
The findings noted above support the proposition that intrastate commercial
producers of child pornography affect interstate commerce. They even suggest
that persons who distribute child pornography noncommercially affect the
interstate market. They do not, however, support the proposition that purely
intrastate production and possession for personal use have a similar effect.10
4.
In Maxwell, we concluded that any link between the defendant’s conduct
and a substantial effect on interstate commerce was, at best, “exceedingly
attenuated.” Maxwell, 386 F.3d at 1061. Indeed, we reasoned that “[t]he causal
chain necessary to link his activity with any substantial impact on interstate
commerce might be long enough to reach the outer limits of the solar system.” Id.
10
The First Circuit viewed these findings differently; it concluded that, “[g]iven this
comprehensive backdrop, there is no question that Congress has made explicit findings about the
extensive national market in child pornography and the need to diminish that national market by
prohibiting the production of child pornography at the local level.” Morales-De Jesus, 372 F.3d
at 12. As explained in the text, we do not question the first part of this statement—that is, the
findings support the existence of a national market in child pornography—but we fail to see any
substantial connection between it and producer-consumers such as Smith. We thus part with the
First Circuit on this point. See id. at 21 (“Morales sexually exploited a thirteen-year-old girl,
coercing her into performing sex acts with him on multiple occasions, for the purpose of
videotaping their encounters. As this conduct seems well within the bounds of what Congress
intended—and had the authority—to proscribe under its Commerce Clause power, we reject
Morales’s as-applied challenge.”).
28
at 1058. We noted that some circuits had identified a more direct impact by
aggregating the effect of all similar offenders. Id. at 1059 & n.17. But as we
explained in Part III.A.1, supra, “this aggregate approach cannot be applied to
intrastate criminal activity of a noneconomic nature.” Id. at 1059. Therefore,
“[t]he effect on . . . interstate commerce . . . must be measured in relation to the
isolated conduct at issue, rather than as a nationwide aggregate, because the
intrastate possession of child pornography is a criminal, noneconomic activity.”
Id. at 1061. We also rejected the argument that a more direct connection could be
established via the “addiction theory” discussed in Part III.A.3, supra. Id.
With respect to the degree of attenuation between the conduct at issue and
the ultimate effect, if any, on interstate commerce Maxwell and the present case
are virtually indistinguishable. That Smith’s conduct is more reprehensible simply
has no bearing on its connection to interstate commerce. His production and
possession was intrastate, criminal, and noneconomic. Therefore, aggregation is
not appropriate. Judged in isolation, any link between Smith’s conduct and a
substantial effect on interstate commerce is “exceedingly attenuated.” And for the
same reasons given in Maxwell and in Part III.A.3, supra, the “addiction theory” is
so far reaching and reliant upon inference that it cannot provide a basis for
establishing a direct link to interstate commerce.
29
*****
In sum, we hold that Smith’s conduct does not substantially affect interstate
commerce. Because it is a noneconomic, purely intrastate criminal activity, we
may consider only its isolated effects, not the aggregate effect of all such activity
that occurs nationwide. The activity Smith engaged in is not “commercial” or
“economic” in any sense of those terms. The jurisdictional element in § 2251(a)
and § 2252(a)(5)(B) is, for Commerce Clause purposes, utterly useless given that
“it encompasses virtually every case imaginable.” McCoy, 323 F.3d at 1124. The
relevant congressional findings, though perhaps useful in cases involving
commercial producers or even noncommercial distributors or traders, are of little,
if any, import in the case of a defendant who has produced child pornography for
his own use entirely within the borders of a single state. Finally, the link between
Smith’s activity and a substantial effect on interstate commerce is, at best,
exceedingly attenuated. In light of these factors, Congress lacks the power under
the Commerce Clause to proscribe Smith’s conduct, “error” occurred, and the first
prong of the plain error standard is met.
The Government’s attempts to distinguish Maxwell are unpersuasive. The
Government emphasizes that Maxwell invalidated § 2252A(a)(5)(B) as applied
and therefore cannot be automatically extended to the facts of this case. See
30
Maxwell, 386 F.3d at 1052-53 & n.12. It also points out that Maxwell explicitly
reserved decision as to whether the production of child pornography is within the
power of Congress to proscribe.11 This is true, but applying the reasoning of
Lopez, Morrison, and Maxwell to this case, we discern no constitutionally
significant distinctions. In reaching this conclusion, we decline the Government’s
invitation to infer that Smith distributed child pornography. In its supplemental
11
For example, we reserved “judgment . . . as to whether the distinct acts of producing,
buying, selling, trading, warehousing, distributing, or marketing child pornography constitute
economic or commercial activity.” Maxwell, 386 F.3d at 1056 n.15. We note, however, that
production—at least, that is, production for personal use—is by far the least “commercial” of
these activities and has easily the most attenuated link to interstate commerce.
The Government also points to Maxwell’s statement that “there is simply no record
evidence to suggest that Maxwell was a potential child molester or that his conduct would likely
increase the creation and distribution of child pornography elsewhere, much less to the extent
that such creation and distribution would have a substantial effect on interstate commerce.” Id. at
1059. In contrast, there is evidence that Smith is, as the Government puts it, “not only a
‘potential child molester,’ but an accomplished one.” While this fact certainly makes Smith
more worthy of punishment, we do not see how it makes him more worthy of federal
punishment, i.e., how it provides a more direct link between his conduct and interstate
commerce. Moreover, although Smith’s conduct obviously did “increase the creation . . . of
child pornography,” the evidence was that this creation was for personal use. Therefore, Smith
did not increase distribution or creation “elsewhere,” which is really what this passage from
Maxwell is about—i.e., the idea that any distribution of child pornography eventually affects and
increases the interstate market and leads to even more creation and distribution. And, as we have
explained at length in this Part, there is no evidence that Smith’s conduct, viewed in isolation,
had a substantial effect on interstate commerce.
Finally, in Maxwell we listed a number of things that the Government had not proven,
among them “that Maxwell produced the pornography.” Id. at 1068. We also noted, however,
that there was no proof that Maxwell (1) purchased pornography, (2) traded or distributed
pornography, (3) affected the market supply of pornography, (4) encouraged others to seek
pornography, (5) obtained the pornography itself through the internet or any other channel of
interstate commerce or even (6) from another state, or (7) took or intended to take the
pornography out of state for either commercial or personal use. Id. All of these observations, of
course, apply with equal force to the instant case.
31
letter memorandum, the Government notes that there was not a matching
developed picture or copy for every “thumbnail print” in the lockbox. It then
argues that the absence of these pictures “readily supports the inference that both
the original pictures of Smith’s victim and copies of several of those pictures are
‘in circulation.’” However, Smith was not indicted for distributing child
pornography. Nor did the jury specifically or necessarily find that he had
distributed child pornography. Indeed, the fact that the missing photos were not in
the seized lockbox just as “readily supports the inference” that they were
somewhere in the Smith home that the officers did not search. Thus, we continue
to reserve judgment as to whether proof of noncommercial distribution—as well as
numerous other activities, see Maxwell, 386 F.3d at 1056 n.15—would be
sufficient to sustain a conviction under the Commerce Clause.
B.
In this section, we address the question whether the Maxwell error was
“plain.” “Plain error is, by its terms, error which is so obvious and substantial that
it should not have been permitted by the trial court even absent the defendant’s
timely assistance in detecting it.” United States v. Prieto, 232 F.3d 816, 823 (11th
Cir. 2000). In a case such as this, where the law was unsettled at the time of trial
and has been clarified by the time of appeal, the defendant need only show that the
32
error is plain under current law; Smith is not required to show that the error was
plain at the time of trial. See supra note 7. Thus, we modify the ordinary standard
and ask, “If Smith’s prosecution were initiated today, would his conduct be so
obviously beyond the power of Congress to proscribe that the district court should
raise the issue sua sponte even absent a timely objection?” In light of Maxwell,
we answer this question in the affirmative; accordingly, we hold that the error
identified in Part III.A, supra, was plain.
At the outset, we note that the rule in this circuit is that “where neither the
Supreme Court nor this Court has ever resolved an issue, and other circuits are
split on it, there can be no plain error in regard to that issue.” United States v.
Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000). The Supreme Court has never
resolved this issue, and, as we acknowledged in Maxwell, 386 F.3d at 1068 n.25,
other circuits are split on it. Therefore, the error is plain only if Maxwell itself
made it so. We hold that it did for two reasons: First, the differences between
Maxwell and this case are, at least for Commerce Clause purposes, truly minimal.
Both prosecutions based jurisdiction on the fact that certain materials traveled in
interstate commerce before the defendant used them, which Maxwell thoroughly
discredited as a means for establishing constitutional jurisdiction. The only real
difference between the two cases is that Maxwell involved intrastate possession
33
for personal use, whereas the present case involves intrastate possession and
production for personal use. Second, on each of the four Morrison factors, the
conclusion is inescapable that Maxwell’s reasoning applies to Smith’s case.
Significantly, in Maxwell we reasoned that § 2252A(a)(5)(B) is not an
“effort to control national trade by regulating intrastate activity. Instead, it
attempts to regulate primary conduct directly, even within state borders.” Id. at
1057. Distinguishing Wickard, we reasoned that Congress clearly has no interest
in controlling “the supply of child pornography for the purpose of avoiding
surpluses and shortages or for the purpose of stimulating its trade at increased
prices.” Id. We also noted that the statute’s jurisdictional hook “smacks of
pretext,” as Congress clearly has no interest in reducing traffic in production
materials such as cameras or film. Id. at 1058. “Thus, we conclude[d] that the
regulated intrastate activity . . . [was] more similar by far to the brand of intrastate
criminal conduct that is a proper subject of state regulation alone than it is to the
sort of economic activity addressed in Wickard.” Id. Indeed, “the noneconomic,
criminal nature of Maxwell’s conduct [was] central to our decision.” Id. This
reasoning applies with equal force here. In this context, intrastate production for
personal use is no more a plausible subject of “market” regulation than is intrastate
possession for personal use. Smith’s conduct, like Maxwell’s, is obviously
34
noneconomic and criminal in nature. Accordingly, it is “plain” that Morrison’s
first factor weighs against sustaining federal regulation of it.
Maxwell found the same jurisdictional hook at issue in this case to be
“patently insufficient” as a constitutional matter. Id. at 1063. Also, the Maxwell
court reviewed most of the congressional findings that are relevant and found
“nothing to persuade [it] that possessing child pornography produced with
materials transported in interstate commerce is an activity that has a substantial
effect on interstate commerce.” Id. at 1067. In this case, we address intrastate
production for personal use, but the problem that was evident and emphasized in
Maxwell is evident here as well: the findings merely persuade that a lucrative
child pornography industry exists, not that the activity at issue in this case has any
sort of substantial effect on it. See id. at 1066. In short, it is “plain” to us that the
second and third Morrison factors weigh against the Government.
Evaluating the final Morrison factor—the degree of attenuation between the
charged conduct and any substantial effect on interstate commerce—the Maxwell
court began by reasoning that the nonecomic, criminal nature of the conduct
“alone necessarily attenuates the relationship . . . to some degree.” Id. at 1058.
But just how attenuated that relationship was became clear only after considering
Maxwell’s specific, isolated conduct. Id. This approach was required because the
35
Wickard “aggregate approach cannot be applied to intrastate criminal activity of a
noneconomic nature.” Id. at 1059. When viewed in isolation, “[t]he causal chain
necessary to link [Maxwell’s] activity with any substantial impact on interstate
commerce might be long enough to reach the outer limits of the solar system.” Id.
at 1058. Even if we assume that Smith’s production places him one link closer to
interstate commerce in the causal chain (and thus one link removed from the outer
limits of the solar system), it is clear under Maxwell that the connection between
Smith’s conduct and a substantial effect is extremely remote. The only hope the
Government would have under this prong would be to rely on the Wickard
aggregation principle. But Maxwell squarely holds that this principle “cannot be
applied to intrastate criminal activity of a noneconomic nature,” which clearly
includes Smith’s conduct. Therefore, it is again “plain” that the fourth and final
Morrison factor weighs heavily against the Government.
The Government suggests that this case can be distinguished (if not on the
merits, then at least enough so that the error was not “plain”) based on Maxwell’s
passing observation that there was “simply no record evidence to suggest that
Maxwell was a potential child molester or that his conduct would likely increase
the creation and distribution of child pornography elsewhere.” Id. at 1059. Read
in context, see supra note 10, however, the primary import of this observation is
36
that Maxwell was not contributing child pornography to the market. There is also
no evidence here that Smith was contributing to the market. In any event, in light
of the rest of the opinion’s obvious applicability to the facts of this case, this
single sentence simply is not significant.
In sum, we think that it is plain that Maxwell’s reasoning under all four
prongs of Morrison applies here and that Smith’s conduct is beyond the power of
Congress to proscribe. If an identical prosecution were initiated in one of the
district courts in this circuit today, we would expect the court to raise the issue sua
sponte even absent an objection on the part of the defendant. It is true that
Maxwell’s facts are not identical, and it did not specifically address § 2251(a), but
we discern no distinction that makes the resolution of the question presented here
anything less than clear under current law. The rule in the qualified immunity
context is that “[f]or a constitutional right to be clearly established, its contours
must be sufficiently clear that a reasonable official would understand that what he
is doing violates that right. The very action in question does not have to have
been found unlawful, but in light of pre-existing law the unlawfulness must be
apparent.” Magluta v. Samples, 375 F.3d 1269, 1283 (11th Cir. 2004) (emphasis
added) (citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515, 153 L.
Ed. 2d 666 (2002)). Similarly, under Rule 52(b) it is not necessary for a previous
37
case to have found that the very conduct in question is beyond the power of
Congress to proscribe; rather, it is enough that—as is the case here—the error be
“‘clear’ or . . . ‘obvious.’” Olano, 507 U.S. at 734, 113 S. Ct. at 1777.12
12
As in Maxwell, we acknowledge that other courts have reached different results in
similar, though not identical, cases. Compare McCoy, 323 F.3d at 1126, 1133 (holding that an
identical jurisdictional element in 18 U.S.C. § 2252(a)(4)(B) “provides no support for the . . .
assertion of federal jurisdiction” and that Congress cannot proscribe “simple intrastate possession
of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate
and is not intended for interstate distribution or for economic or commercial use, including the
exchange of the prohibited material for other prohibited material”), United States v. Corp, 236
F.3d 325, 333 (6th Cir. 2001) (holding that the identical jurisdictional element in § 2252(a)(4)(B)
was insufficient to establish federal jurisdiction and that Congress cannot proscribe intrastate,
noncommercial possession of child pornography—at least to the extent that the proscription
reaches a twenty-three-year-old defendant’s possession of photos of himself engaged in
consensual sex with a seventeen-year-old), United States v. Jeronimo-Bautista, 319 F. Supp. 2d
1272, 1277-83 (D. Utah 2004) (holding § 2251(a) unconstitutional as applied to the purely local
crime of a defendant who took pictures of, and participated in, the sexual assault of a minor), and
United States v. Matthews, 300 F. Supp. 2d 1220, 1237-38 (N.D. Ala. 2004) (holding § 2251(a)
and § 2252A(a)(5)(B) unconstitutional as applied to intrastate production and possession of child
pornography that has not traveled in interstate commerce and is not intended for interstate or
economic distribution of any kind), with United States v. Holston, 343 F.3d 83, 90-91 (2d Cir.
2003) (upholding § 2251(a) as applied to intrastate, noncommercial production of child
pornography), United States v. Kallestad, 236 F.3d 225, 227-31 (5th Cir. 2000) (upholding a
conviction for intrastate, noncommercial possession of child pornography under §
2252(a)(4)(B)), United States v. Angle, 234 F.3d 326, 335-38 (7th Cir. 2000) (upholding a
conviction for intrastate, noncommercial possession of child pornography under § 2252(a)(4)(B)
where the defendant was also convicted of ordering child pornography via email and soliciting a
minor to engage in sexually explicit activity via telephone and the internet), Rodia, 194 F.3d at
470-82 (concluding that the identical jurisdictional element in § 2252(a)(4)(B) was essentially
useless but nonetheless upholding a conviction for intrastate noncommercial possession of child
pornography), and United States v. Bausch, 140 F.3d 739, 740-41 (8th Cir. 1998) (upholding a
conviction for intrastate noncommercial possession of child pornography solely on the basis of §
2252(a)(4)(B)’s identical jurisdictional element). In Maxwell, we explicitly rejected the
reasoning of a number of those cases upholding similar convictions. See Maxwell, 386 F.3d at
1059 & n.17, 1061, 1066, 1068 n.25. Therefore, even though some of these opinions addressed
production of child pornography rather than mere possession, they remain unpersuasive because
they did so by committing some combination of the following errors: characterizing plainly
noncommercial activity as “commercial,” applying the inapplicable Wickard aggregation
principle, emphasizing inapposite congressional findings, and relying on a patently deficient
38
C.
Under Rule 52(b), we have the discretion to correct a plain error only if it
“affects substantial rights.” In general, this “means that the error must have been
prejudicial: It must have affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734, 113 S. Ct. at 1778. We have no difficulty concluding that
Smith’s “substantial rights” were affected: the court sentenced him to 188 months
in prison and 60 months of supervised release, whereas Maxwell requires that his
jurisdictional element. We place far more significance on the fact that a district court within this
circuit—even without the benefit of Maxwell—recently had little difficulty concluding that §§
2251(a) and 2252(a)(5)(B) were unconstitutional as applied to essentially indistinguishable facts.
Matthews, 300 F. Supp. 2d at 1227-1238.
Two circuits have suggested that a defendant who is “clearly involved in exactly the type
of child-exploitive and abusive behavior that Congress sought to prohibit” is more likely to be
subject to federal jurisdiction. United States v. Andrews, 383 F.3d 374, 378 (6th Cir. 2004)
(distinguishing Corp, supra, on this basis); accord Morales-De Jesus, 372 F.3d at 20-21. The
reasoning of these opinions seems to be as follows: First, as long as it is actually regulating
interstate commerce, Congress is free to legislate for “moral” or “social” reasons. See Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257, 85 S. Ct. 348, 357-58, 13 L. Ed. 2d 258
(1964). This principle is well-established. Second, the child pornography statutes were intended
to protect children from sexual exploitation; Congress obviously has no interest in regulating the
market for child pornography in the ordinary sense. So far, so good. Third, because the real
purpose of the statutes is to protect children from exploitation, they can be constitutionally
applied to any case in which the defendant himself has exploited children. It is this suggestion
that is novel and unsupported by precedent. Federal moral or social legislation under the
Commerce Clause is constitutional if, and only if, it is a regulation of commerce. When
Congress has chosen address a moral wrong through commercial regulation, it lacks the power to
then insist that the regulation be applied wherever the wrong is found. This point should be
obvious: it is the substantial effect on interstate commerce, not the moral wrong, that supports
federal jurisdiction. Cf. Matthews, 300 F. Supp. 2d at 1235 (“[T]he government would have the
court substitute an issue of unquestioned national concern, child pornography, for the
constitutional requirement that the government demonstrate that the video tape produced and
possessed wholly within one state had a ‘substantial’ effect on interstate commerce. This the
court cannot do.”).
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indictment be dismissed.
D.
Rule 52(b) is discretionary: “A plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.” Fed. R.
Crim. P. 52(b) (emphasis added). The Supreme Court has held that our discretion
should be utilized “to correct only ‘particularly egregious errors,’ those errors that
‘seriously affect the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84
L. Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S. Ct.
1584, 1592, 71 L. Ed. 2d 816 (1982), and United States v. Atkinson, 297 U.S. 157,
160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)). An error may satisfy this standard
“independent of the defendant’s innocence. Conversely, a plain error affecting
substantial rights does not, without more, satisfy the . . . standard, for otherwise
the discretion afforded by Rule 52(b) would be illusory.” Olano, 507 U.S. at 736-
37, 113 S. Ct. at 1779.
The conduct for which Smith was convicted is clearly punishable. The only
problem is that it is not punishable federally. Thus, there is some sense in which
affirming should not undermine public confidence in the criminal justice system or
constitute a miscarriage of justice. In United States v. Walker, 59 F.3d 1196 (11th
40
Cir. 1995), we exercised our discretion under Rule 52(b) to reverse a conviction in
light of Lopez, stating that we could “think of no plainer error than to allow a
conviction to stand under a statute which Congress was without power to enact.”
Id. at 1198 (citing Olano for the proposition that an “appellate court should
conduct plain error review under Rule 52(b) ‘in those cases where a miscarriage of
justice would otherwise result’”). Walker is arguably distinguishable in that it
invalidated a statute as facially unconstitutional rather than as applied;13 also, we
vacated only one of Walker’s convictions, leaving him with a substantial sentence
to serve on his remaining drug- and firearm-related convictions. Id. We have
found relatively little additional caselaw on this issue. Compare United States v.
Suarez, 263 F.3d 468, 489 (6th Cir. 2001) (Boggs, J., dissenting) (“Allowing [the
defendant to remain in prison], while largely believing that his prosecution . . . was
beyond the power of Congress, would certainly seem to call into question the
fairness of the judicial process.”), and United States v. Knowles, 29 F.3d 947, 951-
52 (5th Cir. 1994) (“[O]ur failure to address [the defendant’s Commerce Clause
13
This distinction is possibly relevant to the question whether a district court has subject
matter jurisdiction over a case. Compare Walker, 59 F.3d at 1198 (“In essence, the statute was
void ab initio, and consequently, the district court below lacked subject matter jurisdiction with
respect to that charge.”), with United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir.1998),
and Alikhani v. United States, 200 F.3d 732, 735 (11th Cir. 2000) (“An effect on interstate
commerce may be required for Congress to have authority under the Commerce Clause to forbid
certain conduct. But . . . that does not imply that a district court faced with an insufficient
interstate-commerce nexus loses subject-matter jurisdiction of the case.” (citation omitted)).
41
challenge] would seriously affect the fairness, integrity, and public reputation of
judicial proceedings.”), with United States v. Feliciano, 223 F.3d 102, 125-26 (2d
Cir. 2000) (stating that “the fourth prong of the Olano plain error inquiry is not
satisfied” where the defendant was well aware “that he was committing a very
serious felony” and the only issue was “whether he should have been tried in
federal or state court”).
Tempting as it may be to say that affirming Smith’s conviction would not
harm the integrity or public reputation of the criminal justice system, we think that
it would. The real issue at this point in the case is whether Smith should remain in
federal prison for committing acts that the Federal Government lacks the
constitutional power to criminalize simply because we think his punishment is
deserved. Ultimately, we think that it would undermine public confidence in the
judicial system to so blatantly brush aside the limits our Constitution places on the
Federal Government, especially after we have so recently enforced those same
limits in an essentially indistinguishable case. As we explained in Maxwell,
Our Nation’s Founders were not naive about the risk of an all-
encompassing central power, nor, it seems, did they ignore the
possibility that the legislature might be tempted to overstep its bounds
to legislate ideals favored by its constituencies. Federalism is no
academic shibboleth. It is neither an inane legalism, nor an
anachronous vestige of a bygone colonial era. The federalist system
places a vital check on the power of the central government to
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trespass on our freedom. Federalism ensures a role for the
governments of the states and affords the voting public a more
resonant voice in the debate over many legislative issues of
principally local concern.
Id. at 1069 (citations omitted). That constitutional limitations on governmental
power designed to protect individual freedoms will sometimes benefit evildoers
should come as no surprise. “[E]very guarantee enshrined in the Constitution, our
basic charter and the guarantor of our most precious liberties, is by it endowed
with an independent vitality and value, and this Court is not free to curtail those
constitutional guarantees even to punish the most obviously guilty.” Stone v.
Powell, 428 U.S. 465, 524, 96 S. Ct. 3037, 3066, 49 L. Ed. 2d 1067 (1976)
(Brennan, J., dissenting).
In sum, we hold that the fourth prong of Olano is satisfied, and we
accordingly exercise our discretion to notice plain error, namely, the failure of the
Government to establish that Smith’s conduct substantially affects interstate
commerce such that it can be validly regulated through federal Commerce Clause
legislation.
IV.
As in Maxwell, “[w]e believe Morrison’s framework produces the correct
result in this case.” Maxwell, 386 F.3d at 1067. Undeniably, our holding limits
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the extent to which the Federal Government can prosecute purely intrastate
producers and possessors of child pornography. But, to take a step back from our
extended analysis of Commerce Clause precedent, there is quite simply no
provision of the United States Constitution that grants the Federal Government a
general police power of the type that state governments use to prosecute people
like Alvin Smith. Federal authority in this area is thus limited to cases involving
“Commerce with foreign Nations, and among the several States.” U.S. Const. art.
I, § 8, cl. 3. Obviously, this is not such a case.
For the foregoing reasons, Smith’s convictions are
REVERSED.
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