U.S. v. Smith

• Citation: 459 F.3d 1276
• Decision Date: 11 August 2006
• Docket Number: No. 03-13639.,03-13639.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin SMITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

459 F.3d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Alvin SMITH, Defendant-Appellant.

No. 03-13639.

United States Court of Appeals, Eleventh Circuit.

August 11, 2006.

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Michael G. Nichola (Court-Appointed), Orlando, FL, for Defendant-Appellant.

Karin B. Hoppmann, Tamra Phipps, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, RONEY and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us on remand from the Supreme Court with instructions to reconsider our panel decision, 402 F.3d 1303 (11th Cir.2005) (Smith I), in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). United States v. Smith, ___ U.S. ___, 125 S.Ct. 2938, 162 L.Ed.2d 863 (2005) (mem.). Upon reconsideration, we have determined that, as a result of Raich and our recent decision in United States v. Maxwell, 446 F.3d 1210 (11th Cir.2006) (Maxwell II), we can no longer say that the failure to find 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B) unconstitutional as applied to this case amounted to plain error. Because we find no other reversible error, we affirm the defendant's convictions. Part I lays out the facts of this case. Part II discusses the effect of Raich and Maxwell II on our earlier decision. Part III analyzes claims raised by the defendant that we did not address in that decision. Part IV briefly concludes.

I.

Alvin Smith was convicted of one count of producing child pornography in violation of 18 U.S.C. § 2251(a)¹ and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),² and was sentenced to a total of 188 months in prison and 60 months of supervised release, a condition of which required him to register with state agencies as a sex offender. The physical evidence used against Smith was discovered pursuant to a search warrant executed at Smith's mother's home in Tampa, Florida. At the time of the search, Smith was incarcerated and the target of the investigation was his brother, who lived at the residence and was suspected of involvement in drug trafficking. As such, the focus of the warrant was drugs and drug paraphernalia. During the course of the search, a narcotics dog alerted the police to a lockbox, which was subsequently identified as Smith's. Upon opening the lockbox, the police discovered numerous photographs (investigators later determined the exact number to be 1,768), many sexually explicit, and a number of which appeared to be of "very, very young girls having sex . . . with a male who [was later] identified as the defendant."

The photographs were referred to the police department's sex crime unit where an officer confirmed that many of the pictures appeared to be of young girls. Investigators eventually located a girl who appeared in several of the photographs. From the dates on the photos it was determined that the girl was fourteen years old at the time the pictures were taken.³ The girl confirmed that the photos were of her and, from photographs of Smith, identified him as the photographer.

At Smith's trial, the girl testified that, in November 1999, Smith approached her and her boyfriend and persuaded them to allow Smith to take pictures of her in her underwear in exchange for monetary compensation. After retrieving a camera and film, Smith reserved a hotel room into which only he and the girl entered. Smith convinced her to remove all of her clothes and proceeded to take sexually suggestive pictures. Smith directed many of the poses and physically spread her genitalia himself for a particularly graphic shot. When Smith was finished taking pictures, he left the girl and her boyfriend with money and the hotel room.

During the trial, the Government introduced several pictures from the lockbox, including the photographs of the victim (including a thumbnail print of one roll of the photographs), sexually explicit and sexually suggestive photographs of other females—some of whom appeared likely to be of age—in what appeared to be the same hotel room, and photographs of Smith alone.⁴ Additionally, the Government offered testimony of several of the officers involved in the search and subsequent investigation, as well as a recording of a phone conversation between Smith and his mother, Lucille, that took place while Smith was incarcerated in June 2002, regarding the pictures in the lockbox.

Finally, the Government introduced evidence to satisfy the jurisdictional elements of the statutes. The Government did not attempt to demonstrate that the images either traveled in interstate commerce themselves or were produced with the intent that they would travel in interstate commerce. Rather, by providing evidence that some of the photographs were printed on Kodak paper that the developer in Florida received from New York and that some of the pictures were processed using equipment received from California and manufactured in Japan, the Government's intention was to establish that the photographs were "produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce." 18 U.S.C. § 2251(a); see also id. § 2252A(a)(5)(B).

At the close of the Government's case, the defense moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. The defense argued that, as to the possession count, there was insufficient evidence to prove that Smith knew the girl was younger than eighteen years old; as to both counts, there was insufficient evidence to establish the jurisdictional elements. The court denied the motion and sent the case to the jury. The jury convicted Smith on both counts, specifically finding that the pornographic photographs were produced using film, photo paper, and equipment that had traveled in interstate or foreign commerce.

Smith appeals his convictions raising several arguments for the reversal of his convictions and the vacation of his sentences. We begin in part II with his claim that the statutes under which he was convicted were unconstitutional applications of Congress's Commerce Clause authority as applied to his conduct.

II.

Smith contends that both 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 2251(a) are unconstitutional exercises of Congress's Commerce Clause authority as applied to his conduct.⁵ In Smith I, we upheld Smith's claims and reversed his convictions. It is these holdings that the Supreme Court returned to us for reconsideration in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

In our previous decision, we noted that, because Smith had not challenged the constitutionality of the statutes at trial, such a contention would only be reviewed for plain error. "Under the plain error standard, before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Williams, 445 F.3d 1302, 1308 (11th Cir.2006). We again review Smith's claim for plain error. In doing so, we are mindful that, just as in Smith I, "[t]he error must be `plain' at the time of appellate consideration." 402 F.3d at 1315. That is, the error must be plain now, in light of recent Supreme Court and Eleventh Circuit developments.

As we stated in our prior opinion, the Supreme Court has delineated three categories of activity that Congress may constitutionally regulate pursuant to its Commerce Clause authority:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, 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.

Smith I, 402 F.3d at 1316 (quoting United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995)) (internal quotation marks omitted). The question we addressed in Smith I— and reconsider here—was whether either statute, as applied to Smith's case, could be said to be regulating conduct that "substantially affect[s] interstate commerce." Id.

As to this issue, our prior opinion stated that "the law at the time of Smith's trial was `unclear' rather than `settled and clearly contrary to' him." Smith I, 402 F.3d at 1315 n. 7 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)). We ultimately determined, however, that, at the time of appeal, it was settled that Smith's conduct could not be said to affect substantially, at least in the constitutional sense, interstate commerce. Accordingly, we held that Congress's regulation of Smith's production and possession of child pornography was beyond the scope of its Commerce Clause authority.

In arriving at this conclusion, we relied primarily on this court's earlier decision in United States v. Maxwell, 386 F.3d 1042 (11th Cir.2004) (Maxwell I), where we concluded that "purely intrastate possession of child pornography was not converted `into an activity subject to Commerce Clause regulation' simply because `the disks on which the pornography was ultimately copied traveled, when blank, to Florida from someplace outside of Florida.'" Smith I, 402 F.3d at 1309 (quoting Maxwell I, 386 F.3d at 1068). Discerning nothing to distinguish constitutionally Smith's case from Maxwell's, we found constitutional error. See id. at...