U.S. v. Jeronimo-Bautista

Decision Date12 October 2005
Docket NumberNo. 04-4137.,04-4137.
Citation425 F.3d 1266
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Virgilio JERONIMO-BAUTISTA, also known as Virgilino Jeronimo, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit
425 F.3d 1266
UNITED STATES of America, Plaintiff-Appellant,
v.
Virgilio JERONIMO-BAUTISTA, also known as Virgilino Jeronimo, Defendant-Appellee.
No. 04-4137.
United States Court of Appeals, Tenth Circuit.
October 12, 2005.

Page 1267

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, and Karin M. Fojtik, Assistant United States Attorney, with him on the briefs), Salt Lake City, UT, for Plaintiff-Appellant.

Mary C. Corporon, Corporon & Williams, P.C., Salt Lake City, UT, for Defendant-Appellee.

Before SEYMOUR, PORFILIO and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.


Virgilio Jeronimo-Bautista was indicted, in part, for coercing a minor to engage in sexually explicit conduct "for the purpose of producing visual depictions of such conduct . . . using materials that have been . . . transported in interstate and foreign commerce," in violation of 18 U.S.C. § 2251(a). The district court dismissed the charge, concluding that as applied to Mr. Jeronimo-Bautista, § 2251(a) exceeded Congress' authority under the Commerce Clause. United States v. Jeronimo-Bautista, 319 F.Supp.2d 1272 (D.Utah 2004). The government appeals, and we reverse.

I

This case arises out of Mr. Jeronimo-Bautista's motion pursuant to FED.R.CRIM.P. 12(b)(3)(B), in which he sought the dismissal of his indictment. He contended the district court lacked subject matter jurisdiction over the crime charged against him because the acts he allegedly committed "did not constitute any conduct impacting interstate commerce, or any subject or matter properly within the purview of the federal government." App. at 13. While Mr. Jeronimo-Bautista asserts he is actually innocent, for the purposes of our review of the district court's grant of Mr. Jeronimo-Bautista's Rule 12(b)(3)(B) motion we make all factual inferences in favor of the government, assuming it could prove the facts alleged against Mr. Jeronimo-Bautista at a trial. See United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994) (citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)) (allegations in indictment are treated as true when reviewing Rule 12(b) motion to dismiss). Accordingly, for the purposes

Page 1268

of this appeal only, we assume the following facts.

On January 29, 2004, Mr. Jeronimo-Bautista and two other men, while in the company of a thirteen year-old girl, entered a vacant residence in Magna, Utah. At some point the girl became unconscious, possibly after ingesting an intoxicating substance. After she lost consciousness, the three men removed her clothing, sexually assaulted her, and took photographs of their actions. The camera used to take the photographs was not manufactured in the state of Utah.

One of the men took the film to a one-hour photo lab for processing. In the course of developing the film, staff at the lab noticed images that appeared to depict the sexual assault of a minor female. The manager of the lab called the police, who viewed the photographs and then initiated an investigation resulting in the arrest and indictment of Mr. Jeronimo-Bautista. As noted by the district court, it was undisputed that Mr. Jeronimo-Bautista was a citizen of Mexico and resided in the State of Utah. Jeronimo-Bautista, 319 F.Supp.2d at 1274. The victim was born in Utah and was not transported across state lines in connection with the acts charged in the indictment. Id. Moreover, "[t]he photos were never disseminated, were not stored or transmitted electronically via the Internet, the United States Postal Service, nor by any other method across state lines or internationally. There is no indication that [Mr. Jeronimo-Bautista] had any intention of so transmitting or storing the images." Id.

The indictment charged that Mr. Jeronimo-Bautista, along with the two other men1

did knowingly employ, use, persuade, induce, entice, and coerce a minor . . . to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which visual depictions were produced using materials that have been mailed, shipped, and transported in interstate and foreign commerce, and did aid and abet each other therein,

app. at 11-12, thereby violating § 2251(a) (production of child pornography)2 and 18 U.S.C. § 2 (aiding and abetting). Mr. Jeronimo-Bautista moved to dismiss the indictment on the ground that the district court did not have subject matter jurisdiction over the acts charged against him, contending § 2251(a) violated the Commerce Clause as applied to him. The district court agreed, concluding that Mr. Jeronimo-Bautista's charged activity "was not of a type demonstrated to be substantially connected or related to interstate commerce." Jeronimo-Bautista, 319 F.Supp.2d at 1282. This case is now before us on the government's appeal.

II

We review "challenges to the constitutionality of a statute de novo."

Page 1269

United States v. Dorris, 236 F.3d 582, 584 (10th Cir.2000). The United States Constitution grants to Congress the "Power to . . . regulate Commerce . . . among the several States." U.S. CONST. art I, § 8, cl. 3. As relevant here, "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (internal citations omitted). Hence we must determine whether Mr. Jeronimo-Bautista's local production of pornographic images of a child substantially affects interstate commerce.

In addressing Mr. Jeronimo-Bautista's as applied challenge to the statute, the district court noted the four factors delineated by the Supreme Court in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and in Lopez "for consideration in addressing the constitutionality of a statute based upon Commerce Clause authority." Jeronimo-Bautista, 319 F.Supp.2d at 1278. The court accurately described those factors as (1) whether the prohibited activity is commercial or economic in nature; (2) whether the statute's reach was limited by an express jurisdictional element; (3) whether Congress made findings about the effects of the prohibited conduct on interstate commerce; and (4), whether there exists a link between the prohibited conduct and the effect on interstate commerce. Id.

Working its way through the Lopez/Morrison factors, the district court first rejected the argument that Mr. Jeronimo-Bautista's activity was economic in nature and, in doing so, rejected the assertion that Mr. Jeronimo-Bautista's intrastate activities could, in the aggregate, affect interstate commerce. Id. Second, the court determined § 2251(a)'s express jurisdictional element failed "to place any meaningful restrictions on federal jurisdiction and fail[ed] to establish the link between the violation and interstate commerce." Id. at 1280. Third, the court was not convinced the existence of Congressional findings regarding the child pornography industry was "sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation as applied to the facts of this case." Id. (internal quotation omitted). Finally, referring back to its determination that Mr. Jeronimo-Bautista's activity could not be deemed economic in nature, the court also rejected the use of an aggregation theory to support the argument that there existed something more than only a tenuous link between Mr. Jeronimo-Bautista's prohibited activity and interstate commerce. Id. at 1281. The court dismissed the indictment against Mr. Jeronimo-Bautista on the grounds that as applied to the specific facts of his case, § 2251(a) violated the Commerce Clause.

Pending this appeal, the Supreme Court decided Gonzales v. Raich, ___ U.S. ___, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), in which it rejected an as applied challenge to the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., and held that Congress could regulate the purely local production, possession, and use of marijuana for personal medical purposes. Raich, 125 S.Ct. at 2215. As we discuss in more detail below, the Court's reasoning in Raich, coupled with the standard four factor Lopez/Morrison analysis, supports our conclusion that the district court erred in concluding § 2251(a) violates the Commerce Clause as applied to Mr. Jeronimo-Bautista.

We begin by examining the findings accompanying the comprehensive scheme developed by Congress to eliminate the production, possession, and dissemination of child pornography. When Congress first passed the Protection of

Page 1270

Children Against Sexual Exploitation Act of 1977, it noted "that child pornography . . . [has] become [a] highly organized, multimillion dollar industr[y] that operate[s] on a nationwide scale . . . [and that] the sale and distribution of such pornographic materials are carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce." S.REP. No. 95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42-43.3 Findings supporting the 1977 Act also noted that

[s]ince the production, distribution and sale of child pornography is often a clandestine operation, it is extremely difficult to determine its full extent. At present, however, a wide variety of child pornography is available in most areas of the country. Moreover, because of the vast potential profits involved, it would appear that this sordid enterprise is growing at a rapid rate.

Id. at 43.

Amendments to the Act in 1984 eliminated the requirement that "the production, receipt, transportation, or distribution of child pornography be for a `pecuniary profit.'" United States v. Morales-de Jesus, 372 F.3d 6, 11 (1st Cir.2004). The purpose of this amendment was to eliminate an enforcement gap in the statute: "Many of the individuals who...

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