USA. v. Rodia

Decision Date12 July 1999
Citation194 F.3d 465
Parties(3rd Cir. 1999) UNITED STATES OF AMERICA, v. JOSEPH RODIA Appellant NO. 98-5522 Argued:
CourtU.S. Court of Appeals — Third Circuit

On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. No. 97-cr-00128) District Judge: Honorable Mary Little Cooper

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

LISA VAN HOECK, ESQUIRE (ARGUED) Assistant Federal Public Defender 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609, for Appellant

FAITH S. HOCHBERG, ESQUIRE United States Attorney NORMAN J. GROSS, ESQUIRE (ARGUED) Assistant United States Attorney Office of the United States Attorney Mitchell S. Cohen Courthouse Fourth & Cooper Streets Camden, NJ 08101-2098, GEORGE S. LEONE, ESQUIRE Assistant United States Attorney Office of the United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102, for Appellee.

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal requires us once again to determine, in the wake of United States v. Lopez, 514 U.S. 549 (1995), the constitutionality of a statute criminalizing an activity that is not directly linked to interstate commerce. The precise question before us is whether it was within Congress's power under the Commerce Clause to enact 18 U.S.C. S 2252(a)(4)(B), which imposes criminal liability on individuals who possess child pornography that has not itself traveled in interstate commerce as long as one of the materials from which the pornography was created--in this case, Polaroid film--has so traveled.

Unlike the statute in question in Lopez, this statute has a jurisdictional element or "hook"--that is, a clause that purports to ensure that the law only covers activity that has a substantial effect on interstate commerce. We conclude, however, that the jurisdictional element in S 2252(a)(4)(B) does not achieve this goal. Accordingly, we must consider whether Congress could reasonably have believed that the intrastate possession of child pornography that has been made using products that traveled interstate has a substantial effect on the interstate commerce in child pornography.

Although we are not without misgivings in view of the breadth of the regulation at issue, we conclude that Congress rationally could have believed that intrastate possession of pornography has substantial effects on interstate commerce. Intrastate possession likely fosters the possessor's demand for additional child pornography, some of which will come from interstate sources. Hence, discouraging the intrastate possession of pornography will cause some of these child pornographers to leave the realm of child pornography completely, which in turn will reduce the interstate demand for pornography--the very activity Congress wished to suppress through regulation. This point is buttressed by the fact that Congress has historically regulated interstate commerce in child pornography, and that Congress hoped to close a remaining loophole in the law by criminalizing intrastate possession of the same. We therefore will affirm the judgment of the District Court convicting Rodia under S 2252(a)(4)(B).

I. Facts and Procedural History

In 1991, local law enforcement officials in New Jersey arrested Joseph Rodia and filed state charges against him, including attempted aggravated sexual assault, endangering the welfare of a child, and manufacturing child pornography. After a New Jersey grand jury indicted Rodia on these charges, he fled and was eventually arrested in Ohio for sexually assaulting a child there. After pleading guilty to two counts of endangering the welfare of a child, he received a four-year sentence. While serving that sentence in Ohio, federal law enforcement officials brought a charge against him in the District Court for the District of New Jersey, alleging a violation of the Child Restoration and Penalties Act of 1990, 18 U.S.C. S 2252 ("CRPA"), which criminalizes the possession of child pornography when the pornography has traveled in interstate commerce or when the materials from which the pornography was created traveled in interstate commerce. The material creating the purported jurisdictional hook in this case was the Polaroid film with which Rodia's pornographic photographs were taken. It is undisputed that Polaroid film has never been manufactured in New Jersey and that it was transported there via interstate commerce.

Before trial, Rodia moved to dismiss the federal indictment on the ground that Congress had exceeded its powers under the Commerce Clause in enacting the second clause of S 2252(a)(4)(B), since that clause regulates the purely intrastate possession of child pornography. The District Court denied the motion. Rodia later pled guilty, admitting that he knowingly possessed numerous photographs that constituted child pornography, including three Polaroid photos of naked boys in various sexually explicit poses. The District Court accepted his plea and sentenced him to a twenty-one month prison sentence, followed by three years of supervised release with special conditions.

Rodia did not preserve his right to appeal by entering a conditional guilty plea. See Fed. R. Crim. P. 11(a)(2). However, since the issue presented goes to the jurisdiction of the District Court, we have jurisdiction over his appeal. See United States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir. 1995). Our review of the statute's constitutionality is plenary, though we must respect Congress's ample discretion to determine the appropriate exercise of its Commerce Clause authority. See United States v. Rybar, 103 F.3d 273, 278 (3d Cir. 1996). In engaging in this review, we must ascertain whether Congress "could rationally conclude that the regulated activity substantially affects interstate commerce." Id. Our inquiry is restricted to whether any state of facts--either facts known or facts that could reasonably be assumed--affords support for that conclusion. See Pic-A-State PA, Inc. v. Reno, 76 F.3d 1294, 1302 (3d Cir. 1996). If such a set of facts exists, we then must consider whether "the means chosen by Congress are reasonably adapted to the end permitted by the Constitution." Id. (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981)).

II. The Parties' Contentions

The version of 18 U.S.C. S 2252 that was in place in 1991, when Rodia was arrested, provided in relevant part:

(a) Any person who . . . (4) either . . . (B) knowingly possesses 3 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. S 2252(a)(4)(B) (emphasis added).

Rodia was indicted under the second clause of subsection (B) of the statute, which grounds jurisdiction solely on the fact that the materials from which the pornography was created were shipped in interstate commerce. This is the only part of the statute he challenges; he does not contest the constitutionality of the clause regulating pornography that itself has traveled in interstate commerce. Thus, when we discuss S 2252, we are referring only to the clause that prohibits the intrastate possession of child pornography made from materials that traveled interstate. In formulating his constitutional challenge, Rodia relies heavily on United States v. Lopez, 514 U.S. 549 (1995). It is therefore necessary to summarize that decision here.

A.

In Lopez, the Court struck down the Gun Free School Zones Act ("GFSZA") on the ground that Congress exceeded its Commerce Clause power in passing the Act. The GFSZA made it a federal offense for any individual to knowingly possess a firearm within a school zone. The Court described the three broad categories of activity that Congress may properly regulate--the channels of interstate commerce, the instrumentalities of interstate commerce, and those activities that have a substantial relation to interstate commerce--and noted that, in light of the activity regulated (gun possession), the GFSZA could be upheld, if at all, only if it fell into the third category. See id. at 559.

In concluding that the statute was unconstitutional under the third category of regulation, the Court based its decision on two major grounds and a minor ground. It first noted that the GFSZA, a criminal statute that had "nothing to do with `commerce' or any sort of economic enterprise," was not a "part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id. at 561. Though the government (and four Justices in dissent) argued that guns in school zones result in violent crime, which harms the educational environment and makes for less productive citizens, the Court found the connection between gun possession on school grounds and commercial transactions too attenuated to say that such possession substantially affected interstate commerce. The Court also rejected the argument that the costs of crime impact the well-being of the nation as a whole, since it would follow from that argument that Congress could regulate all violent crime.

Second, the Court noted that the GFSZA contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561. The Court thus sought some guarantee that the behavior being regulated has a sufficient nexus to...

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