U.S.A. v. Galo, 99-3870

• Decision Date: 06 February 2001
• Docket Number: No. 99-3870,99-3870
• Citation: 239 F.3d 572
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA v. ANDREW F. GALO, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 572

239 F.3d 572 (3rd Cir. 2001)

UNITED STATES OF AMERICA v. ANDREW F. GALO, Appellant

No. 99-3870.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 9, 2000

Filed February 6, 2001

Appeal from the United States District Court for the Western District of Pennsylvania, District Judge: Hon. Alan N. Bloch, Criminal No. 99-CR-05000

SHELLY STARK, ESQ., Federal Public Defender, W. PENN HACKNEY, ESQ., Asst. Federal Public Defender, KAREN SIRIANNI GERLACH, ESQ. (Argued) Asst. Federal Public Defender, Pittsburgh, PA, Attorneys for Appellant

HARRY LITMAN, ESQ., United States Attorney, BONNIE R. SCHLUETER, ESQ., Asst. United States

Attorney, MARY BETH BUCHANAN, ESQ., (Argued), Asst. United States Attorney, Pittsburgh, PA, Attorneys for Appellee.

Before: GREENBERG^* and McKEE, Circuit Judges, and GARTH, Senior Circuit Judge

OPINION OF THE COURT

MCKEE, Circuit Judge.

Andrew Galo appeals the sentence that was imposed following his conditional plea of guilty to production of material depicting the sexual exploitation of children, in violation of 18 U.S.C. S 2251(a), and possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. S 2252(a)(4)(B). He argues that these statutes are unconstitutional per se, and as applied to him. He also challenges the district court's use of his prior state court convictions to enhance his sentence and impose a mandatory minimum sentence of 15 years imprisonment. We hold that Congress validly exercised its authority under the Commerce Clause in enacting SS 2251(a) and 2252(a)(4)(B), and that those statutes are not unconstitutional as applied to Galo. We do, however, agree that the sentencing court erred in enhancing his sentence based upon his prior state court convictions, and we will therefore remand for resentencing.

I. FACTUAL BACKGROUND.

In 1996, Galo was in a relationship with Sheila H. She had a young daughter whom we will refer to as Jessica H. Jessica H. had previously been sexually abused by one of her mother's boyfriends. That abuse caused Children and Youth Services ("CYS") to temporarily remove Jessica from her home. She had been placed back in her home before or during Galo's relationship with her mother.

At some point, Galo persuaded Sheila H. to permit Jessica H., then thirteen years old, to spend a night at his apartment. Galo accomplished this by threatening to tell CYS that Sheila H. had previously permitted Jessica H. to have contact with him. This would have jeopardized Sheila's custody of her daughter because Galo had a state criminal record, the nature of which we discuss below. Sheila knew that Jessica should not have been permitted to be in Galo's company without supervision because of Galo's background. Galo also threatened to have the utilities at Sheila H.'s residence turned off unless Jessica spent time with him. The utilities were registered in his name. In addition to threats and coercion, Galo also cajoled Sheila by telling her that he might one day be Jessica's step-father, and suggesting that he and Jessica therefore needed time to get acquainted.

On the evening of March 1, 1999 Jessica did stay with Galo. During her visit he took approximately 21 sexually explicit nude photographs of her after instructing her to pose nude and expose her genitals. Jessica knew that Galo had a temper and she was therefore apparently too afraid to resist or refuse.

Galo took the undeveloped film containing these photographs to an Eckerd Drug Store for processing. However, the photo manager there stopped processing the film and alerted police as soon as she discovered the sexually explicit nature of the photographs. Police responded and arrested Galo when he returned to pick-up the developed photographs. Initially Galo told the police that the film belonged to a friend in Ohio, but he later changed his story and admitted that he knew the child in the photographs was naked. He denied having intercourse with her and claimed that he only wanted to see if the pictures would "come out." Police obtained a search warrant of Galo's residence and seized 10 additional pictures of Jessica, as well as pictures of Galo's nieces. Some of the pictures were of girls in their underwear while others were fully clothed. Police also seized a .35mm Vivitar camera that was later identified as being the camera that took the indecent photographs. Subsequent investigation disclosed that the indecent pictures of Jessica had been processed on Kodak paper. The photographic paper, film, and Vivitar camera had all been manufactured outside of Pennsylvania.

II. PROCEDURAL HISTORY.

On April 6, 1999, a federal grand jury charged Galo in a two count indictment. Count One charged him with production of material depicting the sexual exploitation of children, in violation of 18 U.S.C. S 2251(a), and Count Two charged him with possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. S 2252(a)(4)(B). Galo filed a motion to dismiss the indictment alleging that SS 2251(a) and 2252(a)(4)(B) were unconstitutional. He also claimed that application of the statutes to him deprived him of equal protection of the laws.

On July 29, 1999, the district court denied Galo's motion to dismiss the indictment and Galo immediately entered a conditional plea of guilty to both counts of the indictment. He preserved the following issues for appeal:

(a) Whether Title 18, United States Code, Section 2251(a) is a valid exercise of the authority granted to Congress under the Commerce Clause.

(b) Whether the evidence supporting the jurisdictional element of Title 18, United States Code, Section 2251(a) is sufficient under the Commerce Clause.

(c) Whether Title 18, United States Code, Section 2252(a)(4)(B) is a valid exercise of the authority granted to Congress under the Commerce Clause.

(d) Whether the evidence supporting the jurisdictional element of Title 18, United States Code, Section 2252(a)(4)(B) is sufficient under the Commerce Clause.

The court accepted Galo's plea and thereafter requested that Galo and the government file briefs addressing whether Galo's prior state convictions would subject him to the mandatory minimum sentence of 15 years, contained in 18 U.S.C. S 2251(d). Galo argued that he was not subject to the mandatory minimum sentence because the state convictions did not relate to the sexual exploitation of children as required under S 2251(d). The district court disagreed and concluded that Galo's prior state court convictions did subject him to the mandatory minimum. Consequently, the district court sentenced Galo to a term of imprisonment of 15 years (180 months), followed by five years of supervised release.

This appeal followed.

III. DISCUSSION.

A. Constitutional Challenge to 18 U.S.C. SS 2251(a) AND 2252(b)(4)(B).

As noted above, Galo pled guilty to violating 18 U.S.C. SS 2251(a) and 2252 (a)(4)(B). Section 2251(a), is captioned "Sexual Exploitation of Children," and provides in relevant part as follows:

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 (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

18 U.S.C. S 2251(a) (emphasis added). Section 2252(a)(4)(B), is captioned "Certain activities relating to material involving the sexual exploitation of minors," and provides in relevant part:

(a) Any person who . . . (4) either . . .

(B) knowingly possesses 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 in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported by any means including 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(b)(4)(B). After Galo was sentenced, we decided United States v. Rodia, 194 F .3d 465 (3d Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 2008 (2000). There we held that Congress enacted S 2252(a)(4)(B) pursuant to a valid exercise of authority under the Commerce Clause. Section 2252(a)(4)(B) imposes criminal liability on anyone who possesses child pornography that has not itself traveled in interstate commerce, so long as one of the materials used to create the pornography has traveled in interstate commerce. We reasoned that Congress could have rationally concluded that intrastate possession of child pornography created a demand that substantially affected interstate commerce. Accordingly, Congress could regulate intrastate possession of child pornography under the Commerce Clause in order to effectively regulate its impact on interstate commerce. Although Rodia focused only on S 2252(a)(4)(B), the same reasoning governs our analysis of S 2251(a) because both statutes contain the same jurisdictional element.

As we explained in Rodia, "[a] jurisdictional element [or hook] . . . refers to a provision in a federal statute that requires the government to establish specific facts justifying the existence of federal jurisdiction in connection with any individual application of the statute." Rodia at 471. Here, the requirement that at least one of the materials used to produce the child pornography travel in interstate commerce...