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United States v. Wellbeloved-Stone

United States District Court, W.D. Virginia, Charlottesville Division

April 26, 2018

United States of America,
v.
Richard Alan Wellbeloved-Stone, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         This case is before the Court on Defendant's motion to dismiss and two motions to suppress. (Dkts. 31, 32, 35, 36). Defendant was indicted on three counts of violating 18 U.S.C. §§ 2251(a), (e) (possession of child pornography), and one count of violating 18 U.S.C. §§ 2252(a)(4)(B), (b)(2) (production of child pornography). Defendant moves to dismiss the counts as running afoul of the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, arguing Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519 (2012), changed the Supreme Court's Commerce Clause jurisprudence and reopened the question of whether these statutes are constitutional. Defendant also moves to suppress evidence obtained pursuant to two 19 U.S.C. § 1509 summonses and a Virginia state search warrant. The motions to suppress are currently under seal, and so the Court will use general language where appropriate to maintain confidentiality. Because I find the motions to be without merit, I will deny them.

         I. Motion to Dismiss

         In his motion to dismiss, Defendant lodges an as-applied challenge to 18 U.S.C. §§ 2251(a), (e) and 2252(a)(4)(B), (b)(2). (Dkt. 32). He contends that both statutes, § 2251 and § 2252, violate the Commerce Clause because they subject “individuals to federal police powers based exclusively on a lack of economic or commercial interest activity.” Id. at ECF 3. He claims his conduct lacks a nexus to interstate commerce. Id. at ECF 4. The Fourth Circuit rejected identical arguments before NFIB. See United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001) (upholding § 2251 under the Commerce Clause); United States v. Malloy, 568 F.3d 166, 169, 179-80 (4th Cir. 2009) (same); United States v. White, 2 Fed.Appx. 295, 297 (4th Cir. 2001) (upholding § 2252 under the Commerce Clause). NFIB did not reopen questions about the validity of these challenges and so these arguments still fail.

         In NFIB, Chief Justice Roberts stated that the individual mandate in the Affordable Care Act “could not be sustained under a clause authorizing Congress to ‘regulate Commerce.'” Id. at 558.[1] He reasoned that the individual mandate did not regulate existing commercial activity, but rather compelled individuals to engage in commercial activity under the guise that doing so affected interstate commerce. Id. at 552. Defendant incorrectly equates the statutes' proscription of his alleged conduct (production and possession of child pornography) with the Affordable Care Act's regulation of the inactivity at issue in NFIB. 567 U.S. at 558. While five members of the Supreme Court concluded the latter exceeded Congress's power under the Commerce Clause, the former does not. This result is mandated by the Fourth Circuit's pre-NFIB cases addressing Congress's authority to regulate this conduct.

         Those cases asked whether the regulated conduct underlying the as-applied challenged had “substantially affect[ed] interstate commerce.” Buculei, 262 F.3d at 328 (quoting United States v. Lopez, 514 U.S. 549, 558-59 (1995)). Analysis of this question must begin with a presumption of constitutionality. “Due respect for the decisions of a coordinate branch of Government demands that [courts] invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000) (citing United States v. Lopez, 514 U.S. 549, 568, 577-578 (Kennedy, J., concurring)). A court conducting this inquiry need only find a “rational basis for concluding that an activity substantially affects interstate commerce.” United States v. Gibert, 677 F.3d 613, 624 (4th Cir. 2012) (citing United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001)); see also Montgomery Cty., Md. v. Fed. Nat. Mortg. Ass'n, 740 F.3d 914, 921 (4th Cir. 2014). The Supreme Court has enumerated four factors for lower courts to consider in analyzing whether an activity substantially affects interstate commerce:

(1) whether the statute relates to an activity that has something to do with “‘commerce' or any sort of economic enterprise, however broadly one might define those terms”;
(2) whether the statute contains an “express jurisdictional element which might limit its reach” to activities having “an explicit connection with or effect on interstate commerce”;
(3) whether congressional findings in the statute or its legislative history support the judgment that the activity in question has a “substantial effect on interstate commerce”; and
(4) whether the link between the activity and a substantial effect on interstate commerce is attenuated.

Gibert, 677 F.3d at 624 (summarizing factors laid out in United States v. Morrison, 529 U.S. 598, 610-13 (2000)): see also United States v. Umana, 750 F.3d 320, 337 (4th Cir. 2014). Like the Fourth Circuit's pre-NFIB cases addressing the constitutionality of these statutes, I will address each of these factors in turn.

         A. The Statutes Relate to “Commerce”

         First, as to whether the statute relates to “commerce” or any sort of economic enterprise, the Fourth Circuit has held “visual depictions of minors engaging in sexually explicit conduct, i.e., child pornography, is economic in nature.” Buculei, 262 F.3d at 329 (citing United States v. Kallestad, 236 F.3d 225, 228 (5th Cir. 2000)). The production of an item for personal consumption (in this case child pornography) that is frequently traded in interstate commerce is economic in nature. Id. (citing Wickard v. Filburn, 317 U.S. 111 (1942)). Further, the Fourth Circuit recently noted courts have “uniformly stated that the intrastate receipt, production, and possession of child pornography have a substantial effect on the interstate movement of child pornography.” United States v. Miltier, 882 F.3d 81, at *12 (4th Cir. 2018) (citing United States v. Paige, 604 F.3d 1268, 1270-71 (11th Cir. 2010); United States v. Malloy, 568 F.3d 166, 169, 179-80 (4th Cir. 2009); United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005)).

         Overall, Defendant's alleged self-produced child pornography, together with his subsequent possession of it, is enough to substantially affect interstate market for such illicit depictions. Wickard v. Filburn, 317 U.S. 111 (1942); see also New York v. Ferber, 458 U.S. 747, 761 (1982) (“The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.”). This type of conduct is not mere inactivity, and Congress did not enact the statutes at issue to criminalize a lack of action or compel action, distinguishing this case from NFIB. Rather, Congress successfully undertook to punish affirmative acts (production and possession) related to child pornography that possess a nexus to interstate commerce.

         Therefore, the first factor supports the constitutionality of both statutes.

         B. The Statutes Contain Jurisdictional Elements

         Second, as to whether the statute contains a jurisdictional element to limit its reach to activities with an explicit connection to interstate commerce, I find such an express jurisdictional element is present in the plain language of both statutes.

         Title 18, U.S.C. § 2251(a) states:

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 as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or . . . transported in or affecting interstate or foreign commerce by any means, including by computer. . . .

18 U.S.C. § 2251(a) (emphasis added). Likewise, under 18 U.S.C. §§ 2252(a)(4)(B):

Any person who--knowingly possesses, or knowingly accesses with intent to view, 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 using any means or facility of interstate or foreign commerce or in or affecting 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 ...

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