United States Court of Appeals
For the First Circuit
No. 02-2695
UNITED STATES OF AMERICA,
Appellee,
v.
ELVIN TOMÁS MORALES-DE JESÚS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Oberdorfer,* Senior District Judge.
Juan Matos-de-Juan, with whom Joseph C. Laws, Jr., Federal
Public Defender, and Maria T. Arsuaga, Assistant Federal Public
Defender, were on brief, for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, with whom H.S.
Garcia, U.S. Attorney, and Sonia I. Torres-Pabón, Assistant U.S.
Attorney, were on brief, for appellee.
June 9, 2004
*
Of the United States District Court for the District of
Columbia, sitting by designation.
LIPEZ, Circuit Judge. Elvin Tomás Morales-De Jesús
("Morales") was convicted by a jury of violating 18 U.S.C. §
2251(a) for using materials mailed, shipped, and transported in
interstate or foreign commerce to produce a video recording of his
sexually explicit encounters with a minor. On appeal, he argues
that 18 U.S.C. § 2251(a), facially and as applied, is an
unconstitutional exercise of Congress's Commerce Clause power, and
that the evidence presented at trial was insufficient to sustain a
conviction. Finding appellant's arguments unavailing, we affirm.
I.
For purposes of our analysis, we can avoid recounting
most of the lurid details of this case. In short, Morales induced
a thirteen-year-old girl, who was his god-daughter and a member of
his church, to have sex with him in a motel on at least five
separate occasions. During the final two encounters, Morales used
materials and equipment that had moved in interstate commerce to
videotape the pair's sex acts. After his wife discovered the tape
in the backseat of his car and played it, she informed the girl's
parents, who then contacted police. Morales was duly arrested,
charged, and indicted for two counts of violating 18 U.S.C. §
2251(a), which provides in pertinent part that
[a]ny person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . sexually explicit conduct for
the purpose of producing any visual depiction
of such conduct[] shall be punished as
provided under subsection (d), . . . if that
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visual depiction was produced using materials
that have been mailed, shipped, or transported
in interstate or foreign commerce by any means
. . . .
18 U.S.C. § 2251(a).
Morales's three-day jury trial produced a guilty verdict
on both counts. After the defendant unsuccessfully moved for a
judgment of acquittal, he was sentenced to 135 months of
imprisonment and three years of supervised release on each count,
to be served concurrently, and fined $1,000 with a special monetary
assessment of $100. The district court ordered the federal
sentence to be served concurrently with a 25-year state sentence
based on charges filed for the same conduct at issue here. This
appeal followed.
II.
A. Constitutional Claim
Morales appears to bring both facial and as-applied
challenges to the constitutionality of § 2251(a). Relying on
United States v. Lopez, 514 U.S. 549 (1995) and United States v.
Morrison, 529 U.S. 598 (2000), Morales urges that § 2251(a) is
unconstitutional because it attempts to regulate intrastate child
pornography created exclusively for personal use which, Morales
argues, does not affect interstate commerce. Morales further
argues that even if the statute is facially constitutional, it is
unconstitutional as applied to him because his activities were not
commercial in nature and did not implicate interstate commerce. We
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review constitutional challenges de novo. United States v.
Robinson, 137 F.3d 652, 653 (1st Cir. 1998).
Section 2251(a) is part of a broad regulatory scheme that
prohibits the production, receipt, transmission, and possession of
child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. When this
statute was originally enacted as part of the Protection of
Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-
225, § 2(a), 92 Stat. 7, 8 (1978)(codified at 18 U.S.C. §§ 2251 et
seq.)("the Act"), it targeted production of child pornography only
if the pornographic depiction itself was transported in interstate
commerce, or if the defendant knew, or should have known, that the
depiction would be transported in interstate commerce. In 1998,
Congress amended the Act by adding the jurisdictional element we
have before us today: only the materials used to produce the
pornographic depictions must "have been mailed, shipped, or
transported in interstate or foreign commerce by any means . . .
." to subject a potential defendant to liability. 18 U.S.C. §
2251(a).
1. Lopez and Morrison
Morales argues that the "materials-in-commerce"
jurisdictional element in § 2251(a) is an unconstitutional exercise
of Congress's Commerce Clause power1 in light of United States v.
1
Article I, § 8 of the United States Constitution provides
that "[t]he Congress shall have Power To . . . regulate Commerce
with foreign Nations, and among the several States . . . ."
-4-
Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S.
598 (2000). In Lopez, the Supreme Court struck down the Gun-Free
School Zones Act of 1990 (GFSZA), 18 U.S.C. § 922(q)(1)(A), which
prohibited knowingly possessing a firearm within 1000 feet of a
school. The Supreme Court enumerated three categories of
activities that Congress may properly regulate pursuant to the
Commerce Clause:
First, Congress may regulate the use of the
channels of interstate 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 (citations omitted). Since the GFSZA
regulated neither channels nor instrumentalities of interstate
commerce, the Lopez Court analyzed the statute under the third
category: activities that substantially affect interstate commerce.
Id. at 559.
In finding the GFSZA constitutionally infirm, the Supreme
Court held that because the statute "by its terms has nothing to do
with 'commerce' or any sort of economic enterprise," it could not
be upheld under precedents that approved "regulations of activities
that . . . are connected with a commercial transaction that, when
viewed in the aggregate, substantially affects interstate
-5-
commerce." Id. at 561. Second, the Court observed that the GFSZA
lacked a jurisdictional element that would "ensure, through case-
by-case inquiry, that the firearm possession in question affects
interstate commerce." Id. Finally, the Court stated that although
congressional findings about the "legislative judgment that the
activity in question substantially affected interstate commerce"
were not required, such findings would have helped the Court
evaluate the impact of the activity on interstate commerce "even
though no such substantial effect was visible to the naked eye."
Id. at 563. Based on these considerations, the Court found the
GFSZA to be unconstitutional. Id. at 567-68.
The Supreme Court amplified Lopez's holding five years
later in Morrison, when the court evaluated a federal civil remedy
for victims of gender-based violence, as set forth in the Violence
Against Women Act of 1994 ("VAWA"), 42 U.S.C. § 13981 ("A person .
. . who commits a crime of violence motivated by gender . . . shall
be liable to the party injured, in an action for the recovery of
compensatory and punitive damages . . . ."). There, as in Lopez,
the court was faced with another so-called category three
regulation, pertaining to activities that allegedly have a
substantial relation to interstate commerce. Morrison, 529 U.S. at
600. Drawing on its reasoning in Lopez, the Morrison Court
identified four factors to consider in determining whether a
statute regulates an activity that has a substantial effect on
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interstate commerce: (1) whether the statute regulates economic or
commercial activity; (2) whether the statute contains an "express
jurisdictional element" that limits the reach of its provisions;
(3) whether Congress made findings regarding the regulated
activity's impact on interstate commerce; and (4) whether "the link
between [the regulated activity] and a substantial effect on
interstate commerce was attenuated." Id. at 610-12.
In striking down the VAWA, the Court found that "gender-
motivated crimes of violence are not, in any sense of the phrase,
economic activity," and that the statute lacked a jurisdictional
element "establishing that the federal cause of action is in
pursuance of Congress's power to regulate interstate commerce."
Id. at 613. Further, the Court held that while Congress had made
explicit findings "regarding the serious impact that gender-
motivated violence has on victims and their families, . . . the
existence of congressional findings is not sufficient, by itself,
to sustain the constitutionality of Commerce Clause legislation."
Id. at 614. Finally, the Court found that a "causal chain from the
initial occurrence of violent crime . . . to every attenuated
effect upon interstate commerce . . . would allow Congress to
regulate any crime as long as the nationwide, aggregated impact of
that crime has substantial effects on employment, production,
transit, or consumption." Id. at 615.
2. The Constitutionality of § 2251(a) on Its Face
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Because § 2251(a) regulates neither channels nor
instrumentalities of interstate commerce, we analyze the
constitutionality of the statute as a category three regulation
under Lopez. Accordingly, we must apply the four Morrison factors
to determine whether the statute regulates an activity that
"substantially affects" interstate commerce. To aid the clarity of
our analysis, we take the four factors in a different order than
the one presented in Morrison.
a. Congressional findings
When Congress originally passed the Protection of
Children Against Sexual Exploitation Act of 1977, which
criminalized the sale and distribution for sale of child
pornography, 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." S. Rep. 95-438, at 5 (1977), reprinted in 1978
U.S.C.C.A.N. 40, 42-43, available at 1977 WL 9660.2
2
Although we are reviewing the statute as amended in 1998, we
treat congressional findings and the legislative history of the Act
passed in 1978 as relevant to the inquiry. See Maryland v. Wirtz,
392 U.S. 183, 190 n.13 (1968)(holding that when Congress previously
passed related legislation accompanied by applicable findings,
subsequent legislation was "presumably based on similar findings
and purposes with respect to the areas newly covered.").
-8-
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." See Child
Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204; H.R. Rep.
98-536, at 10 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 501,
available at 1983 WL 25391. Noting that "[g]enerally, the domestic
material is of the 'homemade' variety, while the imported material
is produced by commercial dealers," id. at 17, Congress determined
that the statutory regime must be updated to ensure effective
prosecution of producers and distributors.
Congress amended the Act again two years later when it
passed the Child Abuse Victims' Rights Act of 1986, supporting the
new civil remedies for victims by 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." Pub. L. No. 99-591, 100 Stat. 3341-74 (1986).
In 1996, Congress amended the Act to redefine child
pornography as "any visual depiction, including any photograph,
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film, video, picture, or computer or computer-generated image or
picture, whether made or produced by electronic, mechanical, or
other means, of sexually explicit conduct, where . . . such visual
depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct." 18
U.S.C. § 2256(8)(C). 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 . . . ." Child Pornography
Protection Act of 1996, Pub. L. No. 104-208, § 1(4), 110 Stat.
3009-26,(1996), available at 1996 WL 506646. 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."
Id. at § 1(12).
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," 18 U.S.C. § 2251(a), which is the provision
now before us. Congress offered two reasons for this amendment.
First, it wanted the new jurisdictional element of the production
-10-
statute to mirror the existing jurisdictional element of the
possession statutes.3 See H.R. Rep. 105-557, at 26-27 (1998),
reprinted in 1998 U.S.C.C.A.N. 678, 695, available at 1998 WL
285821. 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." Id. at 27.
Given 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.
b. The commercial or economic nature of the regulated
activity
The congressional finding over 25 years ago that child
pornography is a "multimillion dollar industry that operates on a
nationwide scale" emphasizes that the underlying activity regulated
by the child pornography statutes--the production, distribution,
and possession of child pornography--is commercial activity, unlike
the activity addressed by the federal legislation struck down in
3
See, e.g., 18 U.S.C. § 2252(a)(4)(B)(reaching "[a]ny person
who . . . knowingly possesses . . . matter which contains any
visual depiction [of child pornography] 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). We could find no legislative history
revealing Congress's reason for amending § 2252(a)(4)(B) in 1990 to
include this jurisdictional element.
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Lopez and Morrison. As the Lopez Court stated, the GFSZA "by its
terms has nothing to do with 'commerce' or any sort of economic
enterprise, however broadly one might define those terms." Lopez,
514 U.S. at 561. The Morrison Court made a similar observation:
"Gender-motivated crimes of violence are not, in any sense of the
phrase, economic activity." Morrison, 529 U.S. at 613. Possessing
firearms in a school zone and committing gender-based violence do
not involve goods or services that can be bought and sold. There
are no markets for these activities. In contrast, there are large
markets for child pornography. "[W]hen a person produces for [his]
own consumption a product that is traded in an interstate market,
his conduct is economic in character." United States v. Kallestad,
236 F.3d 225, 228 (5th Cir. 2000)(upholding the constitutionality
of § 2252(a)(4)(B)). In contrast, then, to Lopez and Morrison, the
regulated activity here--producing child pornography--is an
economic activity. See also United States v. Buculei, 262 F.3d
322, 329 (4th Cir. 2001)("There can be no doubt that the production
of visual depictions of minors engaging in sexually explicit
conduct, i.e., child pornography, is economic in nature.").4
c. The express jurisdictional element
As previously discussed, the statute only reaches child
pornography "if that visual depiction was produced using materials
4
Whether Morales's individual activity was economic in nature
is a different question, and we address it infra in Part I.A.3,
where we discuss his as-applied challenge.
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that have been mailed, shipped, or transported in interstate or
foreign commerce by any means . . . ." § 2251(a). Importantly,
the jurisdictional element discussed here, and the requirement of
a substantial impact on interstate commerce, discussed in the next
section, are distinct inquiries. At a minimum, the presence of a
jurisdictional element "may establish that the enactment is in
pursuance of Congress's regulation of interstate commerce."
Morrison, 529 U.S. at 612. In addition to this express invocation
of Commerce Clause power, the jurisdictional element may also serve
to ensure that the defendant's conduct has at least some "explicit
connection with or effect on interstate commerce" and limit the
statute's reach to such cases. Id. at 611-12.
Morales complains that because Puerto Rico is an island
heavily dependent on imports, the jurisdictional element of §
2251(a), which requires only that the materials of production have
moved in interstate commerce, does not limit the statute's reach at
all. He makes a fair point about this jurisdictional element that
applies to any locale in the United States. As the Third Circuit
observed in ruling on the same statute: "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 . . . ."
United States v. Rodia, 194 F.3d 465, 473 (3d Cir. 1999).
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There are instances, however, where the jurisdictional
element of a statute will more effectively limit the number of
cases that fall under the purview of the statute, as envisioned by
the Supreme Court. For example, in passing a federal arson
statute, Congress criminalized damaging or destroying, "by means of
fire or an explosive, any . . . property used in interstate or
foreign commerce or in any activity affecting interstate or foreign
commerce." 18 U.S.C. § 844(i)(Supp. IV 1994)(emphasis added). In
Jones v. United States, 529 U.S. 848, 859 (2000), the Supreme Court
reversed a conviction under this statute for the arson of a purely
private residence. The Court found that by criminalizing the arson
of property only if it was "'used in' commerce or commerce
affecting activities," id. at 850-51, Congress did not intend to
exercise its full power under the Commerce Clause, leaving
residential arson cases "to the law enforcement authorities of the
states." Id. at 859. As the Supreme Court noted: "The key word is
'used.' 'Congress did not define the crime described in § 844(i)
as the explosion of a building whose damage or destruction might
affect interstate commerce. . . .'" Id. at 854 (quoting United
States v. Mennuti, 639 F.2d 107, 110 (2d Cir. 1981)). The Supreme
Court read the jurisdictional element of § 844(i) as evidence of
Congress's recognition of the "distinction between legislation
limited to activities 'in commerce' and legislation invoking
Congress's full power over activity substantially 'affecting . . .
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commerce.'" Jones, 529 U.S. at 856 (quoting Russell v. United
States, 471 U.S. 858, 859-60 (1985))(alteration in original). The
jurisdictional element of the federal arson statute, then, required
a somewhat heightened nexus between the defendant's conduct and an
effect on interstate commerce. See United States v. Fenton, [__
F.3d __], 2004 WL 943624, at *7 (1st Cir. May 4, 2004)(explaining
that "the Jones Court concluded that an owner-occupied private
dwelling did not have a sufficient nexus to interstate commerce to
satisfy the jurisdictional element because the owner was not
actively using the property in a way that affected interstate
commerce.") As Fenton and Jones itself make clear, Congress
limited the reach of the arson statute to property that was used
directly in interstate commerce or that was used in activities that
affected interstate commerce.
In passing § 2251(a), however, Congress formulated a
broader jurisdictional element that both invokes its Commerce
Clause power and purports to exercise that power by reaching any
child pornography that was produced using materials that moved in
interstate commerce. Although this jurisdictional element ensures
that any prosecuted conduct has a minimal nexus with interstate
commerce, that minimal nexus may not meet the substantial effect
requirement of Morrison. In Rodia, the Third Circuit found it "at
least doubtful . . . that the jurisdictional element adequately
performs the function of guaranteeing that the final product
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regulated substantially affects interstate commerce." Rodia, 194
F.3d at 473. We agree with this observation.
If the jurisdictional element bore sole responsibility
for establishing that the impact of the regulated activity on
interstate commerce is substantial or direct, the language of §
2251(a) likely would not be up to the task. The jurisdictional
element focuses on things such as film, cameras, videotapes, and
recorders moving in interstate commerce, which are then used to
produce child pornography. As a matter of logic, this Commerce
Clause premise has the kind of flaw so worrisome to the Supreme
Court in Lopez and Morrison--it could justify federalizing a vast
array of crimes now prosecuted by the states, solely because the
criminal used "materials that have been mailed, shipped, or
transported in interstate of foreign commerce by any means." See
Lopez, 514 U.S. at 564 (explaining that if Congress could regulate
criminal acts simply because they have external costs or affect
national productivity, "it [would be] difficult to perceive any
limitation on federal power, even in areas such as criminal law
enforcement or education where States have historically been
sovereign.") Moreover, the congressional findings about the link
between the regulated activity (production of child pornography)
and interstate commerce did not claim that the market for child
pornography was increasing the demand for film and cameras. The
focus, instead, was on a different link--the relationship between
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local production of child pornography and the national market for
the child pornography itself. This is the link that is the focus
of the separate inquiry in the following section about the
substantial effect of the regulated activity on interstate
commerce.
However, the disconnect between the interstate commerce
activity described in the jurisdictional element of § 2251(a) and
the interstate commerce activity (the national market for child
pornography) that prompted Congress to criminalize the production
of child pornography is not fatal to the constitutionality of the
statute. Indeed, even a complete absence of a jurisdictional
element in the text of a statute is not fatal to a statute
challenged on Commerce Clause grounds. "[I]n Lopez, the Court
simply did not state or imply that all criminal statutes must have
such an element, . . . or that any statute without such an element
is per se unconstitutional." United States v. Wilson, 73 F.3d 675,
685 (7th Cir. 1995). See also Rancho Viejo, LLC v. Norton, 323
F.3d 1062, 1068 (D.C. Cir. 2003)("[T]he absence of such a
jurisdictional element simply means that courts must determine
independently whether the statute regulates activities that arise
out of or are connected with a commercial transaction, which viewed
in the aggregate, substantially affect[] interstate commerce.")
(quoting United States v. Moghadam, 175 F.3d 1269, 1276 (11th Cir.
1999)). On the other hand, any statute enacted pursuant to the
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Congress's Commerce Clause power that does not regulate channels or
instrumentalities of interstate commerce, or persons or things in
interstate commerce, must regulate activity that has a substantial
effect on interstate commerce. Otherwise, courts will strike it
down as unconstitutional. We now turn to that substantial effect
inquiry.
d. The link between the regulated activity and a
substantial effect on interstate commerce
The final Morrison factor asks whether "the link between
[the regulated activity] and a substantial effect on interstate
commerce was attenuated." Morrison, 529 U.S. at 612. Given the
manifest nature of the national child pornography market, and
Congress's related findings, there is no question that Congress can
regulate the national child pornography market. The issue, then,
is whether Congress may reach "local, intrastate conduct in order
to effectively regulate a national, interstate market." Kallestad,
236 F.3d at 229.
The seminal case in this area remains Wickard v. Filburn,
317 U.S. 111 (1942). There, the Supreme Court upheld the
Agricultural Adjustment Act, which levied penalties on crops that
exceeded the act's quota. Filburn, a farmer who grew wheat
exclusively for consumption on his own farm, challenged the
constitutionality of the act, arguing that the breadth of the
regulation exceeded Congress's Commerce Clause authority because it
reached purely local production and consumption. In upholding the
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statute, the Supreme Court ruled that Congress could regulate
intrastate activity when such activity, taken in the aggregate,
might ultimately have a substantial effect on interstate commerce.
Wickard, 317 U.S. at 125 ("Even if appellee's activity be local and
though it may not be regarded as commerce, it may still, whatever
its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce . . . .").
Defendant argues that Lopez and Morrison prohibit
applying the aggregation principle to the child pornography laws.
We have encountered this argument before in relation to 18 U.S.C.
§ 2252(a)(4)(B), which uses language analogous to § 2251(a) to
criminalize possession of child pornography.5 See United States v.
Robinson, 137 F.3d 652 (1st Cir. 1998). Because of the
similarities in the statutory language, we find the analysis of §
5
Section 2252(a)(4)(B) provides that
[a]ny person who . . . knowingly possesses 1
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.A. § 2252(a)(4)(B).
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2252(a)(4)(B) persuasive in assessing the constitutionality of §
2251(a). See United States v. Holston, 343 F.3d 83, 89 n.2 (2d
Cir. 2003)(finding § 2252(a)(4)(B) precedent applicable when
considering a challenge to § 2251(a) because "the relevant
jurisdictional language is equivalent"); United States v. Galo, 239
F.3d 572, 575 (3d Cir. 2001)(same).
In Robinson, we upheld the constitutionality of §
2252(a)(4)(B) because the local possession of child pornography
"'through repetition elsewhere' helps to create and sustain a
market for sexually explicit materials depicting minors."
Robinson, 137 F.3d at 656 (quoting Lopez, 514 U.S. at 567).
Echoing the 1996 congressional findings that child pornography
"inflames the desires of child molesters, pedophiles, and child
pornographers who prey on children, thereby increasing the creation
and distribution of child pornography," Pub. L. No. 104-208,
Robinson held that "[b]y outlawing purely intrastate possession of
child pornography . . ., Congress can curb the nationwide demand
for these materials." Id.6
6
While Robinson predates Morrison, our decision essentially
anticipated all four of the Morrison factors, which, of course,
were drawn from Lopez. See Robinson, 137 F.3d at 656 (discussing
the economic nature of child pornography, noting § 2252(a)(4)(B)'s
explicit jurisdictional element, citing relevant congressional
findings, and concluding that aggregated possession substantially
affects interstate commerce by "creat[ing] and sustain[ing] a
market for" child pornography).
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As the Third Circuit observed, "[t]here is a subtle
transformation at work" in applying the Wickard aggregation
rationale to situations where the "home-grown" production and
consumption of a commodity does not necessarily substitute for a
commercially produced version that the defendant would otherwise
have purchased in the marketplace. Rodia, 194 F.3d at 476. The
Rodia court noted that Wickard has not been limited strictly to
scenarios of commodity substitution, however, and Wickard's
"generic principle--that intrastate activity, if repeated, may
substantially affect interstate commerce," id., is still sound. In
both Lopez and Morrison, the Supreme Court reaffirmed the vitality
of Wickard while emphasizing that its aggregation principle should
be applied only to statutes that regulate economic or commercial
activities. Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 610.
In addition to our own precedent applying Wickard's
principles to a child pornography statute in Robinson, the Supreme
Court long ago recognized that child pornography is a commodity
influenced by and subject to economic market forces. See Osborne
v. Ohio, 495 U.S. 103, 109-10 (1990)(finding that it is "surely
reasonable for the State to conclude that it will decrease the
production of child pornography if it penalizes those who possess
and view the product, thereby decreasing demand" while upholding an
Ohio pornography statute against a First Amendment challenge). As
the Seventh Circuit succinctly said: "A market has two sides,
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supply and demand; without both, the market collapses." United
States v. Richardson, 238 F.3d 837, 842 (7th Cir. 2001)(discussing
§§ 2252(a)(2) and (a)(4)(B) in a sentencing context). See also
Kallestad, 236 F.3d at 231 ("A true market is inevitably
commercial, and is pushed by supply and demand, whether manifested
in swaps or purchase and sale."). In Robinson, we addressed
possession, the demand side of the child pornography market. Here,
we address production, the supply side of that market. While
possessing child pornography fuels the demand side of the market,
producing child pornography fuels the supply side of the market.
The same logic we used in Robinson applies here: by outlawing the
purely local production of child pornography, Congress can curb the
nationwide supply for these materials. See Robinson, 137 F.3d at
656. The prohibition on intrastate production "curb[s] the supply
of child pornography at its source, before it [is] released into
the interstate market." Rodia, 194 F.3d at 477 n.5.
Defendant's reading of Lopez and Morrison ignores our
analysis in Robinson. Producing child pornography is an economic
activity because it creates a product for which there is an
extensive national market, and "in every case where we have
sustained federal regulation under the aggregation principle in
Wickard, the regulated activity was of an apparent commercial
character." Morrison, 529 U.S. at 610 n.4.(citation omitted).
-22-
Here, Congress wishes to regulate the availability of
child pornography in the national market. Because a significant
portion of the child pornography about which Congress was concerned
"is homegrown, untraceable, and enters the national market
surreptitiously, [the Second Circuit] conclude[d] that Congress, in
an attempt to halt interstate trafficking, can prohibit local
production that feeds the national market and stimulates demand, as
this production substantially affects interstate commerce."
Holston, 343 F.3d at 90. We agree. Often, as is the case here, it
is necessary to control local behavior to ensure the effectiveness
of interstate regulation. See NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 37-38 (1937); see also Kallestad, 236 F.3d at
231 ("[W]e have little hesitation in concluding that where the
product is fungible, such that it is difficult if not impossible to
trace, Congress can prohibit local possession in an effort to
regulate product supply and demand and thereby halt interstate
trade."). We conclude, therefore, that §2251(a) reaches intrastate
activity that substantially affects the interstate child
pornography market. It is a facially valid exercise of Congress's
Commerce Clause power.7
7
This holding is in line with that of seven other appellate
circuits that, since Morrison, have upheld convictions against
constitutional challenges on Commerce Clause grounds to either §
2251(a) or the analogous possession statute, § 2252(a)(4)(B). See
United States v. Holston, 343 F.3d 83 (2d Cir. 2003)(§ 2251(a));
United States v. Galo, 239 F.3d 572 (3d Cir. 2001)(§§ 2251(a) and
2252(a)(4)(B)); United States v. Buculei, 262 F.3d 322 (4th Cir.
-23-
3. The Constitutionality of § 2251(a) As Applied to
Morales
We turn now to Morales's claim that § 2251(a) is
unconstitutional as applied to him. In support of that position,
the defendant argues that his individual conduct falls outside the
class of activity properly regulated by Congress because "although
[he] may have engaged in sexually explicit conduct with a minor for
the purpose of producing visual depictions for his own
gratification, the evidence has shown that defendant did not
purchase, trade, sell or barter the self-generated pornography, nor
[did] he [have] any intention to do so." This argument is
unpersuasive. When Congress regulates a class of activities that
substantially affects interstate commerce, a defendant's claim that
his personal activities did not affect interstate commerce fails if
his activity is within that class. When "'a general regulatory
statute bears a substantial relation to commerce, the de minimis
character of individual instances arising under that statute is of
no consequence.'" Lopez, 514 U.S. at 558 (quoting Maryland v.
Wirtz, 392 U.S. 184, 197 n.27). Here, Congress authorized
2001)(2251(a)); United States v. Kallestad, 236 F.3d 225 (5th Cir.
2000)(§ 2252(a)(4)(B)); United States v. Angle, 234 F.3d 326 (7th
Cir. 2000)(§ 2252(a)(4)(B)); United States v. Hampton, 260 F.3d 832
(8th Cir. 2001)(§§ 2251(a) and 2252(a)(4)(B)); United States v.
Adams, 343 F.3d 1024 (9th Cir. 2003)(§ 2252(a)(4)(B)). For a
contrary view in the as-applied context, see United States v. Corp,
236 F.3d 325 (6th Cir. 2001)(upholding an as-applied challenge to
§ 2252(a)(4)(B)); and United States v. McCoy, 323 F.3d 1114 (9th
Cir. 2003)(same), both of which we discuss infra.
-24-
punishment for any person who "employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct[]," including intrastate production of child pornography
for personal use. 18 U.S.C. § 2251(a). Contrary to Morales's
arguments, the government is not required to prove that the
defendant's actions, standing alone, had an effect on interstate
commerce, and the fact that Morales did not sell or distribute the
pornographic tapes of himself and the minor is irrelevant.8
In reaching this conclusion, we do not reject all
possible as-applied Commerce Clause challenges to § 2251(a) and the
related child pornography statutes.9 To amplify this point, we
distinguish between different types of as-applied challenges.
There is the kind of challenge we have in this case–-a claim that
conduct clearly within the language of the statute (inducing a
minor to engage in sexually explicit conduct for the purpose of
8
The government still must prove, as it did here, that the
materials used to produce the pornographic depiction were "mailed,
shipped, or transported in interstate or foreign commerce by any
means . . . " because it is an element of the charged offense. §
2251(a). Whatever the limited value of the jurisdictional element
in assuring that the statute meets the constitutional requirement
of the Commerce Clause, it is an element of the offense that the
government must address in all prosecutions under the statute.
9
Also, we do not intend to express any view regarding as-
applied challenges to statutes relating to the regulation of adult
pornography. The State has "greater leeway in the regulation of
pornographic depictions of children." New York v. Ferber, 458 U.S.
747, 756.
-25-
producing a visual depiction) is nevertheless beyond the power of
Congress to criminalize because the perpetrator does not intend to
sell or distribute the visual depiction. This claim fails because
Congress's power to criminalize this conduct pursuant to the
Commerce Clause turns on the economic nature of the class of
conduct defined in the statute rather than the economic facts (such
as sale or distribution) of a single case. As we have already
indicated, Lopez and Morrison proscribe this kind of as-applied
challenge.
However, there are as-applied challenges that might focus
on facts other than the economic facts of the particular case.
These facts could include the age of the minor, the relationship
between the defendant and the minor, the nature of the allegedly
sexually explicit conduct, and the nature of the visual depiction
of that conduct. In a given prosecution, some of these facts could
raise constitutional privacy concerns10 or concerns that the conduct
at issue, although covered by the language of the statute, was not
within the sphere of activity identified by Congress as the basis
for its exercise of power under the Commerce Clause. In Lopez and
Morrison, the Supreme Court consulted legislative history for
10
For example, the Supreme Court has held that states cannot
regulate the private possession of adult obscenity, Stanley v.
Georgia, 394 U.S. 557 (1969), the private sexual activity of
married couples, Griswold v. Connecticut, 381 U.S. 479 (1965), or
the private sexual activity of other adults, Lawrence v. Texas, 539
U.S. 558 (2003).
-26-
Congress's judgment about the conduct it wished to regulate and the
relationship between that conduct and interstate commerce. See
Lopez, 514 U.S. at 557; Morrison, 529 U.S. at 614. Here, the
legislative history of the child pornography statutes reveals that
Congress exercised its Commerce Clause power because of its concern
about the extensive child exploitation industry: "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." Pub. L. No. 99-591, 100 Stat. 3341-74
(1986). See also Pub. L. No. 104-208, § 1(4), 110 Stat. 3009-
26,(1996), available at 1996 WL 506646. Accordingly, the absence
of such exploitation in a given case might be relevant to the as-
applied inquiry.
Two of our sister courts have upheld as-applied
challenges to the analogous possession statute, § 2252(a)(4)(B),
and Morales relies heavily on their reasoning. See United States
v. Corp, 236 F.3d 325 (6th Cir. 2001); United States v. McCoy, 323
F.3d 1114 (9th Cir. 2003). In Corp, the defendant plead guilty to
a single count of possession based on a picture of a seventeen-
year-old girl, taken shortly before her eighteenth birthday,
engaging in consensual sexual activity with Corp's twenty-six-year-
old wife. Noting that "Corp was not involved, nor intended to be
involved, in the distribution or sharing with others of the
-27-
pictures in question," and that the minor was "not an 'exploited
child' nor a victim in any real and practical sense in this case,"
the Sixth Circuit stated that "we do not determine the aggregate
effect on interstate commerce of the purely intrastate dealing in
child pornography. Instead, we conclude that Corp's activity was
not of a type demonstrated substantially to be connected or
related to interstate commerce on the facts of this case." Corp,
236 F.3d at 332.
The Ninth Circuit, relying on Corp, reached a similar
conclusion in McCoy. There, a mother was prosecuted under the
possession statute for a single picture of her and her daughter
with their genital areas exposed. Faced with a defendant who was
intoxicated when her husband took the picture, and who clearly was
not a pedophile or sexual predator, the Ninth Circuit stated that
"no one claims that [the mother] is or is likely to become a child
pornographer." McCoy, 323 F.3d at 1132. Furthermore, "McCoy's
'home-grown' photograph never entered in and was never intended for
interstate or foreign commerce." Id. (emphasis in original).
Stating that "McCoy's possession was non-economic and non-
commercial," the McCoy court concluded that "nothing in the
circumstances of McCoy's case establishes any substantial
connection between her conduct and any interstate commercial
activity." Id. (emphasis in original).
-28-
We must acknowledge some reservations about certain
aspects of the analysis in the Corp and McCoy decisions. Both
courts noted that the sexually explicit visual depictions in those
cases were not intended for distribution. Corp, 236 F.3d at 332;
McCoy, 323 F.3d at 1132. Based in part on this observation, the
courts concluded--explicitly in McCoy, and impliedly in Corp--that
the conduct at issue was non-economic and non-commercial in nature.
Having thus labeled the conduct at issue as non-economic and non-
commercial, the courts could then avoid applying the Wickard
aggregation principle to the as-applied challenge.
As we have already noted in our discussion of the facial
challenge to § 2251(a), "in every case where [the Supreme Court
has] sustained federal regulation under the aggregation principle
in Wickard, the regulated activity was of an apparent commercial
character." Morrison, 529 U.S. at 610 n.4.(citation omitted).
However, that "apparent commercial character" does not depend on
any intent by an individual defendant involved in the illegal
conduct to introduce the proscribed visual depictions into
commerce. In Lopez and Morrison, the Supreme Court discussed the
type of activity broadly--as defined in the statute--when
determining whether the regulated conduct was commercial or
economic, and when discussing the attenuation of the link between
the regulated activity and a substantial effect on interstate
commerce. For example, Lopez focused on the fact that the GFSZA
-29-
"is a criminal statute that by its terms has nothing to do with
'commerce' or any sort of economic enterprise, however broadly
those terms are defined." Lopez, 514 U.S. at 549 (emphasis added).
Also, the Lopez Court discussed "firearm possession in a local
school zone," not a 12th-grade student bringing a concealed handgun
to school. Id. at 563. Likewise, in Morrison, the Court spoke of
"gender-motived violence" generally, not the defendants' alleged
rape of their college classmate. Morrison, 529 U.S. at 615. Lopez
and Morrison demand that the general subject of the statute, not
the defendant's individual activity, be economic in nature to
justify aggregation under Wickard.
We think that Judge Trott's dissent in McCoy is
persuasive on this important point.
My compassionate friends are not incorrect in
describing the underlying microcosmic facts of
this case as (1) wholly personal, (2) not
commercial, (3) strictly intrastate, and (4)
the product of an isolated alcohol-fueled
episode--all suggesting that Rhonda McCoy and
her family need help, not federal prison.
However, I conclude, based on Supreme Court
precedent, that the majority's legal approach
is not correctly grounded. The real
determinative question is whether the activity
generically described in the statute has a
substantial effect on interstate commerce such
that it is subject to criminalization by
Congress.
-30-
McCoy, 323 F.3d at 1134 (Trott, J. dissenting)(emphasis in
original).11 The Second Circuit engaged in similar reasoning to
reach the same conclusion in upholding § 2251(a) against an as-
applied Commerce Clause challenge in United States v. Holston, 343
F.3d 83 (2d Cir. 2003). Quoting its own precedent involving a
Commerce Clause challenge to a federal statute that prohibited
growing marijuana even when the defendant did not intend to
distribute the drug, the Holston court held that
when Congress regulates a class of activities
that substantially affect interstate commerce,
"[t]he fact that certain intrastate activities
within this class, such as growing marijuana
solely for personal consumption, may not
actually have significant effect on interstate
commerce is . . . irrelevant." Moreover,
"[t]he nexus to interstate commerce . . . is
determined by the class of activities
regulated by the statute as a whole, not by
the simple act for which an individual
defendant is convicted."
Holston, 343 F.3d at 90 (quoting Proyect v. United States, 101 F.3d
11 (2d Cir. 1996)(per curiam)(alterations in original)). In both
Corp and McCoy, a minor was induced to engage in sexually explicit
conduct for the purpose of producing a visual depiction that could
find its way into the national market for pornography. It does not
matter that the defendant had no intention of placing that visual
depiction in the national market.
11
To the extent that Judge Trott in his dissent in McCoy took
the position that there can be no as-applied challenges in Commerce
Clause cases when the conduct falls within the language of the
statute, we disagree for the reasons already stated. See infra.
-31-
However, to the extent that the Sixth and Ninth Circuits
considered the defendants' non-predatory, non-exploitative conduct
in deciding that their conduct fell outside the purview of the
statute and the Congressional concerns that prompted its passage
pursuant to the Commerce Clause, we agree with the relevance of
this consideration. The Corp court emphasized that the minor was
almost eighteen years old and willingly participated in the sexual
conduct. Similarly, the McCoy court emphasized that the single
pornographic picture represented questionable judgment by an
intoxicated parent, not the predatory act of a pedophile. Unlike
the inappropriate reliance in Corp and McCoy on the absence of an
intent to distribute the depictions in commerce, their reliance on
the age of the minor, the relationship between the defendants and
the minor, and the absence of predatory exploitation all seem
important and appropriate questions to ask in considering whether
the conduct at issue in an as-applied challenge falls within the
class of activity which bears the substantial relationship to
interstate activity that justifies action by Congress under the
Commerce Clause.
On the facts of the case before us, we are comfortable
that "the acts charged against [Morales] were well within the
limits of legitimate congressional concern," Sabri v. United
States, 2004 WL 1085233, (May 17, 2004). Specifically, Morales
sexually exploited a thirteen-year-old girl, coercing her into
-32-
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.12
B. Sufficiency of the Evidence
In addition to his constitutional challenges, Morales
also raises a sufficiency of the evidence claim. Appellate courts
review claims regarding the sufficiency of the evidence de novo.
United States v. Hernández, 146 F.3d 30, 32 (1st Cir. 1998). The
evidence presented at trial must be evaluated in the light most
favorable to the government, and all reasonable inferences will be
drawn in its favor. United States v. Baltas, 236 F.3d 27, 35 (1st
Cir. 2001). When a plausible read of the record supports the
verdict, we will not overturn the jury’s determination on appeal.
United States v. Ortíz, 996 F.2d 707, 711 (1st Cir. 1992).
12
Our colleague limits her concurrence to the sufficiency of
the evidence analysis and the affirmance of the conviction,
suggesting that our decision in United States v. Robinson, 137 F.3d
652 (1st Cir. 1998) obviates the need for any further analysis.
Respectfully, we disagree for two reasons. First, we read Robinson
as only a facial analysis of a Commerce Clause challenge to the
analogous possession statute, not an as-applied ruling on the
statute at issue here. Second, United States v. Morrison, 529 U.S.
598 (2000), post-dates Robinson by two years. Defendant
specifically argued that Morrison, in combination with United
States v. Lopez, 514 U.S. 549 (1995), precluded the applicability
of the Wickard aggregation principle endorsed by Robinson. That is
not an insubstantial argument. It had to be addressed.
-33-
Morales argues that the government failed to prove one of
the elements of an 18 U.S.C. § 2251(a) violation--namely, that the
defendant induced the minor to engage in sexually explicit conduct
for the purpose of producing a visual depiction of such conduct.
The defendant argues that the video was the result of, not the
motive behind, his sex acts with the minor. At trial, Morales
testified that he and the girl had "romantic feelings" for each
other and that the video "came about by chance." Noting that he
had created videos of himself and his wife having sex, and that
they used the tape solely for their own use, he says that this
history bolsters his claim that he did not engage in sex with the
minor for the purpose of recording the encounters.
As succinctly explained by the district court, "the
testimony of the minor, the testimony of the defendant, and the
videotape itself constitute an evidentiary basis sufficient to
allow a jury to find that the defendant induced the minor to have
sexual relations with him for the purpose of recording that
conduct." The evidence shows that the defendant actively concealed
from the minor the fact that he was videotaping her. He told her
that the video camera was connected to the television so that she
"could see herself" while the two had sexual relations.
Additionally, while taping his sex acts with the minor, the
defendant gave her specific instructions regarding certain
positions he wanted her to assume relative to the camera,
-34-
instructed her on what to say while the camera recorded their
activities, and used a remote control to zoom the camera in and out
while they were having sex.
Furthermore, the defendant's claim that the videotaping
was not planned is implausible. After the defendant had taken the
minor to a motel room to have sex for the fourth time, he returned
to his car and retrieved the recording equipment that he kept
there. The defendant kept sexual aids in the same bag with the
camera, a fact which standing alone could lead the jury to infer
that the defendant had planned to videotape the encounters.
Similarly, the defendant's taping of his sexual activity with his
wife could lead a reasonable jury to believe that he also engaged
in sex acts with the minor for the purpose of videotaping them.
Finally, a reasonable jury also could infer that since Morales
taped sexual encounters with the minor more than once, he induced
the girl to engage in sex acts for the purpose of creating
videotapes of their encounters. On this background, we readily
find that the government's evidence was sufficient to support the
jury's guilty verdict.
AFFIRMED.
- Concurring Opinions Follow -
-35-
LYNCH, Circuit Judge, Concurring. I join the judgment
affirming the conviction and that portion of Judge Lipez's opinion
in Section II.B. which rejects Morales's sufficiency of the
evidence challenge. I do not join the remainder of the opinion.
The defendant's as-applied Commerce Clause challenge to
his conviction is foreclosed by this court's previous opinion in
United States v. Robinson, 137 F.3d 652 (1st Cir. 1998), which I
read as resolving that case on the basis of the "as applied"
challenge. There is no need to address a facial challenge. Even
in the aftermath of United States v. Morrison, 529 U.S. 598 (2000),
defendant has offered no principled basis for distinguishing
Robinson's acceptance, in this context, of the theory of a nexus to
interstate commerce contained in Wickard v. Filburn, 317 U.S. 111
(1942). See Robinson, 137 F.3d at 656. That being so, the panel
is bound by Robinson.
-36-
OBERDORFER, Senior District Judge, Concurring. I join
the majority opinion. I am satisfied that it does not foreclose
'as applied' challenges in limited, yet-to-be-defined
circumstances. An overbroad definition of conduct constitutionally
proscribed by the statute here at issue could impermissibly tilt
the balance between the federal interest in suppressing commerce in
pornography and violation of the constitutional protections
afforded to the intimate relations of individuals and to the
traditional law enforcement prerogatives of the states. Because we
recognize that, in circumstances not present here, application of
18 U.S.C. § 2251(a) could be inconsistent with such limitations on
federal Commerce Clause power, I am satisfied that Section II.A.3
of our opinion adequately honors those limitations.
-37-