U.S. v. Adams

343 F.3d 1024

UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael ADAMS, Defendant-Appellant.

No. 02-50196.

United States Court of Appeals, Ninth Circuit.

Submitted September 3, 2003.^* Pasadena, California.

Filed September 10, 2003.

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Kevin M. Bringuel, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant.

Anne Kristina Perry, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-01-01804-JNK

Before DONALD P. LAY,^** MICHAEL DALY HAWKINS, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

In United States v. McCoy, 323 F.3d 1114 (9th Cir.2003), we entertained an "as applied" constitutional challenge to 18 U.S.C. § 2252(a)(4)(B) and held that Congress lacks the power under the Commerce Clause to criminalize the "simple intrastate possession of home-grown child pornography not intended for distribution or exchange." 323 F.3d at 1122-23. Now we must answer the question left undecided in McCoy: whether 18 U.S.C. § 2252(a)(4)(B), on its face, is an unconstitutional exercise of congressional power. We hold that it is not.

We also hold that the definition of "sexually explicit conduct" found at 18 U.S.C. § 2256(2)(A), on its face, is not substantially overbroad under the First Amendment. Nor is the statute void for vagueness. We affirm the conviction that underlies these challenges.

I

In October 1999, San Diego County sheriffs deputies searched the home of Defendant-Appellant Steven Adams after receiving a report that Adams had been fraternizing with children. At the time, Adams was a sex-offender on state probation and was required to submit to such searches. In the course of the search, deputies seized a billyclub, pornographic pictures of adults, non-pornographic pictures of Adams with children, Adams's computer, and several computer diskettes.

Forensic analysis of Adams's computer and diskettes revealed previously deleted images of naked, prepubescent children engaged in various sexual acts. In June 2001, approximately nineteen months after the search of his home and the seizure of the computer and computer diskettes, a federal grand jury indicted Adams for receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). The indictment specifically referenced the computer and diskettes seized by the State of California.

The federal charges against Adams stemmed from an investigation into the activities of Janice and Thomas Reedy. The Reedys operated a pornographic Internet website in Texas known as Landslide. Landslide provided subscribing members access to child pornography websites. Adams subscribed to Landslide and admits that he viewed and possessed "prohibited images" downloaded from the Internet.

The district court denied Adams's motion in limine to dismiss the indictment. Adams then conditionally pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and reserved his right to challenge the constitutionality of the statute.¹ See Fed.R.Crim.Pro. 11(a)(2). As part of a plea agreement, Adams admitted the following facts:

1. On October 22, 1999, a search was conducted at the home of defendant STEVEN ADAMS. At the time of the search, ADAMS was in possession of a computer and a number of computer diskettes.

2. The computer diskettes and computer contained components that were not manufactured in the State of California.

3. The computer diskettes and computer contained visual depictions of minors engaged in sexually explicit conduct.

4. The production of the visual depictions involved the use of minors engaging in sexually explicit conduct.

5. The images include depictions of actual children.

Adams now appeals. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's denial of Adams's motion to dismiss the indictment and its determination of the constitutionality of the statute. United States v. Cortes, 299 F.3d 1030, 1032 (9th Cir.2002).

II

A

Adams first argues that Congress is powerless to enact a statute criminalizing intrastate possession of child pornography. To decide whether 18 U.S.C. § 2252(a)(4)(B) is a valid exercise of congressional power under the Commerce Clause, we examine the recent Supreme Court decisions of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which set forth the relevant analytical framework.

Lopez "identified three broad categories of activity that Congress may regulate under its commerce power": (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and (3) "those activities that substantially affect interstate commerce." 514 U.S. at 558-59, 115 S.Ct. 1624. Of course, the possession of child pornography concerns neither the channels nor the instrumentalities of interstate commerce. It follows that the possession of child pornography must "substantially affect interstate commerce" in order for Congress to regulate it under the Commerce Clause.

In Morrison, the Court "established what is now the controlling four-factor test for determining whether a regulated activity `substantially affects' interstate commerce." McCoy, 323 F.3d at 1119. These considerations are: (1) whether the regulated activity is commercial/economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated. Morrison, 529 U.S. at 610-12, 120 S.Ct. 1740. The "most important" factors for a court to consider are the first and the fourth. McCoy, 323 F.3d at 1119. "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." Id. In contrast, activities that do have an economic or commercial character will likely have a nexus to interstate commerce and, accordingly, would be proper objects of congressional regulation under the Commerce Clause.

B

In McCoy, we considered whether the federal government may criminalize the intrastate possession of child pornography. Id. at 1115. But the McCoy panel declined to address whether the statute criminalizing mere possession is unconstitutional on its face — the issue in this appeal. Instead it only held that, as applied to Rhonda McCoy, 18 U.S.C. § 2252(a)(4)(B) was an unconstitutional exercise of congressional power. We recount the facts and reasoning of McCoy in some detail.

Jonathan McCoy decided to take a photograph of his intoxicated wife, Rhonda, and their ten-year-old daughter. Rhonda and her daughter posed for the picture, standing side by side, partially unclothed with their genitals exposed. A photo processor saw the picture and reported the McCoys to the authorities. Id. at 1115.

Rhonda and Jonathan were charged with manufacturing and transporting child pornography. Id. at 1116. Jonathan elected to stand trial and was acquitted. Id. Rhonda entered into plea negotiations with the government and conditionally pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), preserving for appeal whether "[the statute], on its face and as applied, constitutes an unconstitutional exercise of Congress's Commerce Clause power." Id. at 1116-17.

The panel considered only Rhonda McCoy's "as applied" challenge to the statute: "whether a statute enacted pursuant to the Commerce Clause may constitutionally reach non-commercial, non-economic individual conduct that is purely intrastate in nature, when there is no reasonable basis for concluding that the conduct had or was intended to have any significant interstate connection or any substantive effect on interstate commerce." Id. at 1117. The court then applied the Morrison "four-part mode of inquiry." Id. at 1117-29.

Applying the first Morrison factor — whether the regulated activity is commercial or economic in nature — McCoy concluded "that simple intrastate possession of home-grown child pornography not intended for distribution or exchange is `not, in any sense of the phrase, economic activity.'" Id. at 1122-23 (quoting Morrison, 529 U.S. at 613, 120 S.Ct. 1740). The court determined that home-grown child pornography intended for personal use did not influence, in any way, the national market for child pornography.

The court expressly noted its disagreement with the Third Circuit's decision in United States v. Rodia, 194 F.3d 465 (3d Cir.1999). Rodia posited that "the possession of `home grown' pornography may well stimulate a further interest in pornography that immediately or eventually animates demand for interstate pornography." Id. at 477. This "addiction" theory, McCoy reasoned, rested on "highly questionable premises" for several reasons. McCoy, 323 F.3d at 1121. First, Rodia's "common sense understanding of the demand side forces" was based on speculation and not explicit congressional findings. Id. Second, Rodia's "labeling of persons who possess a `home-grown' picture of a child as `child pornographers' and addicts-in-futuro" was highly debatable in that it piled "presumption on presumption." Id. at 1122. Finally, Rodia's conclusion that home-grown pornography is a fungible good was incorrect because home-grown pornography often is intended for personal use and not for exchange, as was the case with Rhonda McCoy's photograph. Id.

McCoy explained that the Wickard v. Filburn "aggregation principle" did not apply to render...