The opinion of the court was delivered by: Glen H. Davidson Chief Judge
OPINION DENYING MOTION TO QUASH
Presently pending before the Court is the Defendant's motion to quash the indictment. Upon due consideration, the Court finds that the motion shall be denied.
A. Factual and Procedural Background
On April 14, 2006, Karen C. left her five-year old minor child in the care of her neighbors Charles and Karen McGee of Batesville, Mississippi. At 8:00 P.M. on the night of April 14, 2006, Clint Roberson, a Deputy Sheriff with the Panola County Sheriff's Department, was dispatched to Tri-Lakes Medical Center to take a report involving a juvenile. According to a report known as the Underlying Facts and Circumstances, Deputy Roberson recorded statements made by the minor child and her mother.
The minor child stated that she did not go to school on April 14, 2006, and stayed with the Defendant and his wife all day while her mother was at work. The minor child stated that in the morning that Karen McGee went shopping and left her alone with the Defendant. The minor child stated that the Defendant touched her buttocks and informed her he wanted to take a picture of her. The minor child alleges that the Defendant told her to pull her panties down. The minor child said no over and over, but eventually succumbed to the Defendant. The minor child states that she pulled her panties down and the Defendant took pictures of her. In addition, the minor child alleges that the Defendant stuck his finger into her and it hurt.
Upon Mrs. McGee's return later in the day, the minor child alleges she told Mrs. McGee about the incident. Mrs. McGee allegedly confronted the Defendant who denied any such thing occurred. Karen C. retrieved her child sometime that afternoon and her child told her allegedly what occurred.
The minor child's statements made up the majority of an affidavit in support of a search warrant to search the Defendant's house. Deputy Roberson informed Investigators Mark Whitten and Barry Thompson of the statement he had recorded. They decided to gain a search warrant. All three of them signed the affidavit. The officers believed that a molestation and child pornography violations had occurred.
The affidavit asked to search the Defendant's house at 209 Musgrove Road, Batesville, Mississippi for: "any and all items that could be used for taking, developing, printing or viewing any type of photography or recording any image. Any and all cameras, video cameras, film, tapes, pictures, computers, or any other device that could be used for recording images or photographs." Justice Court Judge Willie E. Joiner issued this warrant at 11:05 P.M. on April 14, 2006 and the officers executed this warrant at 11:13 P.M..
Upon searching the house the officers of the Panola County's Sheriff's Department seized a digital camera, a video camera, two computers, a computer hard drive, and a compact disk. This evidence was turned over to the F.B.I. for forensic examination. The examination of the memory stick of the digital camera revealed images that the Defendant had taken of the minor female. These images included his digital penetration of her vagina, and pictures of her genitalia and pubic area. The Defendant had made these images on April 14, 2006, and had attempted to delete these images prior to the execution of the search warrant. Examination of the computers also revealed the presence of images of child pornography.
The Defendant was arrested on April 15, 2006, and charged with molesting a five-year old. On May 14, 2006, a Grand Jury in the Northern District of Mississippi indicted the Defendant on possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B) and 2256(8). In addition, the Defendant was charged with using a minor to engage in sexual explicit conduct for the purpose of creating visual depictions of the conduct in violation of 18 U.S.C. 2251(a) and 2256(2)(e).
The Court heard oral argument on December 14, 2006, on a plethora of motions filed by the Defendant. After hearing arguments, the Court denied the Defendant's motion to suppress evidence and the Defendant's motion for a forensic interview. The Court sustained the Defendant's motion in limine in regards to Rule 404(b) of the Federal Rules of Evidence. The Court took under advisement the Defendant's motion to Quash the Indictment. The Court ordered that the parties submit briefs regarding whether sufficient interstate nexus existed on Count One of the Indictment. On January 4, 2007, the Court granted the parties additional time to respond to the previous briefs. The parties submitted their briefs on January 14, 2007, and the trial is set for January 22, 2007.
The Defendant argues that sufficient interstate nexus does not exist because this was a purely intrastate activity. In addition, the Defendant argues that this purely intrastate activity does not have a substantial effect on interstate commerce; thus, removing this Court's jurisdiction. Finally, the Defendant argues that the images on the camera were erased and no visual depiction existed. In contrast, the Government argues that the camera and the memory stick moved in interstate commerce before the Defendant purchased them. No digital cameras or memory sticks are produced or manufactured in Mississippi. The Government additionally argues that Congress had a rational basis for banning purely local possession of child pornography as necessary to effect its ban on interstate traffic. The Government also contends that whether or not the Defendant deleted the pictures, a crime was committed.
The framers of the United States Constitution gave Congress the power of the Commerce Clause in response to the weakness associated with the Articles of Confederation; namely, the lack of a federal commerce power. See Gibbons v. Ogden, 6 L.Ed. 23 (1824) (opinion of Johnson, J.); Stern, That Commerce Which Concerns More States Than One, 47 Harv. L.Rev. 1335, 1337, 1340-42 (1934). During the first century of the Republic the Commerce Clause was primarily used to prevent discriminatory state legislation. See Granholm v. Heald, 544 U.S 460, 472-73, 125 S.Ct. 1885, 1895-96, 161 L.Ed. 2d 796 (2005). Upon the rapid industrial development and an increasingly interdependent economy, Congress responded with increasing regulation enacting the Interstate Commerce Act of 1887 and the Sherman Antitrust Act, 15 U.S.C. § 2, et. seq; Wickard v. Filburn, 317 U.S. 111, 121, 63 S. Ct 82, 87 L.Ed. 122 (1947). As a result of this increased era of regulation under the Commerce Clause, the United States Supreme Court has identified three general categories of regulation in which Congress is authorized to engage under its commerce power: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce; and (3) ...