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United States v. McGee


January 16, 2007


The opinion of the court was delivered by: Glen H. Davidson Chief Judge


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.

B. Discussion

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) activities that substantially affect interstate commerce. Gonzales v. Raich, 545 U.S. 1, 16-17, 125 S.Ct. 2195, 2205, 162 L.Ed. 2d 1 (2005); Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed. 2d 686 (1971); NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 2d 893 (1937).

The United States Supreme Court's most recent statement on Congress' power to regulate activities that substantially affect interstate commerce is found in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d (2005). In that case, the Court considered whether Congress had the authority, pursuant to the Necessary and Proper Clause and the Commerce Clause, U.S. Const. Art. I, § 8 cls. 18, to prohibit, via the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., "the local cultivation and use of marijuana in compliance with California law." Raich, 545 U.S. at 6, 125 S.Ct. at 2199. The Supreme Court stated that its "case law firmly establishes Congress' power to regulate purely local activities that are a part of an economic class of activities that have substantial effect on interstate commerce." Id. at 16 (citing Perez v. United States, 402 U.S. at 151, 91 S.Ct. 1357; Wickard, 317 U.S. at 128-29, 63 S.Ct. at 87). The Court also opined, "In this vein we have reiterated that when 'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under the statute is of no consequence.'" Id. at 17, 125 S.Ct. at 2206 (quoting United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed. 2d 626 (1995) (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed. 2d 1020 (1968)).

The Court in Raich greatly expanded the Court's previous decision in Wickard. The Court stated, "Wickard thus establishes that Congress can regulate purely intrastate activity that itself is not 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." Raich, 545 U.S. at 18, 125 S.Ct. at 2206. The fact that the market in the Raich case was an illegal market made no difference to the Court's analysis. Id. at 19, 125 S.Ct. at 2207 n.29 ("It has long been settled that Congress' power to regulate commerce includes the power to prohibit commerce in a particular commodity."); Id. at 40, 125 S.Ct. 2219 (Scalia J. concurring in the judgment) ("The power to regulate interstate commerce 'extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.'" (quoting United States v. Darby 312 U.S. 100, 113, 61 S.Ct. 451, 456, 85 L.Ed. 609 (1941))).

In assessing whether homegrown and consumed marijuana would effect interstate commerce, the Raich Court noted that Congress need only have "a rational basis for concluding that leaving home-consumed marijuana outside federal control would ... affect price and market conditions." 545 U.S. at 19, 125 S.Ct. at 2207. In determining whether interstate activity sought to be regulated "substantially affects" interstate commerce, Congress is entitled to assess the aggregate effect of the non-commercial activity on the interstate market. Id. at 20, 125 S. Ct at 2208. Thus, where Congress has attempted to regulate or eliminate an interstate market, Congress is given substantial leeway to regulate purely intrastate activity (whether economic or not) that it deems to have the capability of frustrating the broader regulation of interstate commerce. United States v. Maxwell, 446 F. 3d 1210, 1215 (11th Cir. 2006).

The Court in Raich held that while a rational basis must exist for Congress to conclude that intrastate conduct could substantially affect its ability to regulate interstate commerce, no specific findings by Congress are necessary. 545 U.S. at 20, 1245 S.Ct. at 2208. The Court further held that "prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product." Id. at 26, 125 S.Ct. 2211. The Court summarized its analysis by stating: "[T]he case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decision in Wickard v. Filburn and later cases endorsing its reasoning foreclose that claim." Id. at 33, 125 S.Ct. at 2215.

In Maxwell, the Eleventh Circuit found that the Child Pornography Prevention Act (CPPA) is part of a comprehensive regulatory scheme criminalizing the receipt, distribution, sale, production, possession, solicitation and advertisement of child pornography. 446 F.3d at 1217; see 18 U.S.C. §§ 2251-52A. Congress had noted that "child pornography ... ha[s] become [a] highly organized, multimillion dollar industr[y] that operate[s] on a nationwide scale." S. Rep. No. 95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42, 1977 WL 9660. The Maxwell Court found that "Congress, through its comprehensive regulation, of which 18 U.S. 2252A is a part, has attempted to eliminate the entire market for child pornography, which as the Court noted in Raich, is just as valid an exercise of Commerce Clause authority as price and volume controls of an otherwise legal market." 446 F.3d 1217. The Eleventh Circuit further opined that in enacting section 2252A, Congress indicated how intrastate possession of child pornography affects the larger market. Id.

The existence of and 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 and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these materials; the sexualization and eroticization of minors through any form of child pornographic images... encourages a societal perception of children as sexual objects and leads to further sexual abuse and exploitation of them; and ... prohibiting the possession and viewing of child pornography will encourage the possessors of such material to rid themselves of or destroy the material, thereby helping to protect the victims of child pornography and to eliminate the market for the sexual exploitative use of children... Pub. L. No. 104-208, § 121, 110 Stat. at 3009-27.

In light of Raich, the Eleventh Circuit found that there was nothing irrational about Congress' conclusion that pornography begets pornography. Maxwell, 446 F.3d at 1218. In addition ,it found that there was nothing irrational about Congress' conclusion that its inability to regulate the intrastate incidence of child pornography would undermine its broader regulatory scheme designed to eliminate the child pornography market completely. Id. Thus, that Court concluded that "It is well within Congress's authority to regulate directly the commercial activities constituting the interstate market for child pornography and prohibiting the intrastate possession.. of an article of commerce as a rational .. means of regulating commerce in that product." Id.

Relying on the Supreme Court's opinion in Raich, the Fourth Circuit Court of Appeals found "that the local production and possession of child pornography substantially affect interstate commerce." United States v. Forrest, 429 F. 3d 73, 78 (4th Cir. 2005). Similarly, the Eleventh Circuit in Maxwell adopted the Fourth's Circuit's reason in holding that "18 U.S.C. 2252A is a valid exercise of Congress's authority pursuant to the Necessary and Proper Clause to effectuate Congress's power to regulate commerce among the several states. 18 U.S.C. § 2251.

The thrust of the Defendant's argument is applied to Count One of the indictment charging him under 18 U.S.C. § 2251(a) and (e). In United States v. Matthews, the Eleventh Circuit reconsidered a previous decision in light of Raich. 184 Fed. Appx. 868 (11th Cir. 2006) (per curiam). The Eleventh Circuit states that the statutory scheme under 18 U.S.C. 2251 is a comprehensive regulatory scheme aimed at an economic class of activities; similar to that of the CSA in Raich. Id. at 869. The Court concluded that there was a rational basis for Congress to conclude that homemade child pornography would find its way into interstate commerce. Id. see H.R. Rep. No. 98-536, at 17, reprinted in 1984 U.S.C.C.A.N. 492, 508 ("Generally, the domestic material is of the 'homemade' variety, while the imported material is produced by commercial dealers."); Pub L. No. 104-208 § 121, 110 Stat. 3009, 3009-26 (1996) ("The existence of and 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 and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these material[.]") Thus, applying Raich, the Court found that the intrastate production of child pornography substantially affects the interstate market. Matthews, 184 Fed. Appx. at 870.

In the case sub judice, the Court is of the opinion that an interstate nexus exists for this Court to have jurisdiction over this Defendant. It is apparent from the facts of this case, that the visual depictions of the minor child in this case were purely intrastate activity. However, Congress has exercised its power through the Commerce Clause to regulate activity that substantially affects interstate commerce. To conclude that Congress does not have the power to regulate the activity described in this case, would substantially weaken Congress' ability to rid the market of child pornography. In addition, this Court finds that Supreme Court's opinion in Raich to be binding precedent upon it. Furthermore, the Court finds the Fourth Circuit's and the Eleventh Circuit's opinions to be highly persuasive authority. As such, the Court is of the opinion that a sufficient interstate nexus exists and that this activity falls within that which substantially affects interstate commerce. Therefore, the Court is of the opinion that the motion to quash is not well-taken and shall be denied.

The Court notes that the briefs in this matter were submitted to the Court on January 16, 2007, a day after a legal holiday. The Court also notes that this case is set for trial on January 22, 2007. Under these circumstances, the Court reserves unto itself the privilege of supplementation to this opinion.

A separate order in accordance with this opinion shall issue this day. This the 16th day of January 2007.


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