U.S. v. Forrest

• Decision Date: 14 November 2005
• Docket Number: No. 04-4665.,04-4665.
• Citation: 429 F.3d 73
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald C. FORREST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 73

429 F.3d 73

UNITED STATES of America, Plaintiff-Appellee, v. Ronald C. FORREST, Defendant-Appellant.

No. 04-4665.

United States Court of Appeals, Fourth Circuit.

Argued September 19, 2005.

Decided November 14, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Gary Eugene Bair, Bennett & Bair, L.L.P., Greenbelt, Maryland, for Appellant. Gina Laurie Simms, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF:

Allen F. Loucks, United States Attorney, Greenbelt, Maryland, for Appellee.

Before WILKINSON and MOTZ, Circuit Judges, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINSON and Judge HARWELL joined.

DIANA GRIBBON MOTZ, Circuit Judge.

Ronald Forrest challenges his conviction for the sexual exploitation of a child in violation of 18 U.S.C.A. §§ 2251(a) and 2252A(a)(5)(b) (West 2000). He contends that Congress's Commerce Clause authority does not extend to his private, intrastate production and possession of child pornography, and that the district court erred in admitting certain photographs and expert testimony. Forrest also maintains that his sentence should be vacated and remanded because the district court mistakenly believed the then-mandatory Sentencing Guidelines required imposition of a prison term. We reject each of these arguments, and affirm the judgment of the district court.

I.

Forrest was the Chief of Police of the Seat Pleasant, Maryland Police Department. He met the victim, Steven, through the department's Junior Police Program. Steven helped found the program because he hoped to become a police officer and wanted to learn more about police work. Initially, the two interacted only when Forrest oversaw the program's activities on weekends. Eventually, however, Steven asked if he could come over to Forrest's house. Forrest agreed. Steven would go to Forrest's house either to do chores (such as mowing the lawn) or to "go[ ] out somewhere" with him. Beginning in January 2001, around the time Steven turned thirteen, he started spending the night at Forrest's house. When Forrest's daughter was away, Steven would sleep in her room, but when she was home he would stay with Forrest in his room. Through these visits, Steven, who had never lived with his own father, came to view Forrest as a father figure.

Steven asked Forrest to take pictures of him to give to his girlfriend. Forrest took digital pictures of Steven, who was clothed at the time, while an X-rated movie played in the background. That same day, Forrest asked if he could take semi-nude photographs of Steven. Originally, Steven refused but agreed after Forrest asked repeatedly and offered to pay Steven between $50 and $80. Forrest then asked to take fully nude photographs of Steven. Steven again refused, but agreed after Forrest offered to pay him more money.

On a separate occasion, Forrest used a Polaroid camera to take pictures of Steven lying on Forrest's bed. In some of the polaroids Steven was clothed, but in others he was unclothed. Forrest again offered Steven between $50 and $80 to pose for these pictures. Steven also testified that Forrest twice attempted to assault him sexually, once in Forrest's bedroom and once in his office.

In 2003, Forrest's fiancee suspected him of infidelity. While searching his house for evidence, she discovered a photo album in his home office. The album included pictures of Steven and another young man she recognized, as well as nude photographs of the fiancee herself. It also contained pictures of adult males; those images bore the logo of a website called "Rude Jam." She left the album at Forrest's house, but returned a few days later to retrieve the album and turn it over to the FBI. Before turning it over, she removed the nude pictures of herself from the album because they embarrassed her.

FBI officers subsequently searched the hard drives of Forrest's home and office computers. They determined that both hard drives contained the same adult male photographs bearing the "Rude Jam" logo that were found in the photo album.

At trial, the Government presented evidence that an Olympus digital camera found in Forrest's home had been manufactured in Asia. The Government also introduced evidence that the Polaroid camera had been manufactured in Massachusetts. Additionally, the Government offered the testimony of expert witness Kenneth Lanning, who described the relationships between child molesters and their victims and the victims' typical responses to such incidents.

Two defense witnesses testified. Steven's former girlfriend testified that Steven denied that Forrest had ever touched him. A second witness offered her opinion that Steven was a liar.

The jury convicted Forrest of two counts of sexually exploiting a minor for the purpose of producing child pornography in violation of 18 U.S.C. § 2251(a) and two counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, defense counsel argued that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applied to the federal guidelines and objected to enhancement of the offense level from 27 to 31 on the basis of facts not found by the jury. Overruling that objection, the district court determined that Forrest's offense level and criminal history category called for a sentence in the 108-135 month guideline range. The court then sentenced Forrest to 120 months, the minimum term of imprisonment that a court can impose under § 2251.

II.

Forrest initially presents an as-applied Commerce Clause challenge to 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B). He asserts that applying these statutes to him exceeds Congress's Commerce Clause authority because his private intrastate production and possession of child pornography did not substantially affect interstate commerce.¹

Forrest did not raise this argument in the district court. To be sure, he did argue that the Government had not proven that the materials used to produce the child pornography traveled in interstate commerce. This is not a constitutional attack; it is merely an allegation that the Government did not meet its burden of proving each element of the offenses beyond a reasonable doubt. Because Forrest did not lodge a constitutional challenge in the district court, we review this claim only for plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005).

Under plain error analysis, an appellant must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even if an appellant makes this three-part showing, we should not exercise our discretion to notice an error unless it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (internal quotation marks omitted)).

Forrest cannot overcome even the initial hurdle of showing error. The Supreme Court's recent decision in Gonzales v. Raich, ___ U.S. ___, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), makes clear that no error resulted from applying §§ 2251(a) and 2252A(a)(5)(B) to Forrest's wholly intrastate production and possession of child pornography. Raich rejected a similar as-applied Commerce Clause challenge to the Controlled Substances Act ("CSA") by intrastate growers and users of medical marijuana.

In Raich the Court reaffirmed the long-standing principle that the Commerce Clause empowers Congress to regulate purely local intrastate activities, so long as they are part of an "economic class of activities that have a substantial effect on interstate commerce." Raich, 125 S.Ct. at 2205 (internal quotation marks omitted) (citing Perez v. United States, 402 U.S. 146, 151, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), and Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942)). Moreover, the Court emphasized, Congress needs only a rational basis for concluding that such local activities substantially affect interstate commerce. Id. at 2208. Because the Raich Court found that the CSA regulated an economic class of activities and that Congress had a rational basis for concluding that local drug possession substantially affected interstate commerce, it held that the Raich defendants could not escape the sweep of the statutory prohibition simply because their individual activities assertedly had a de minimis effect on interstate commerce. Id. at 2206.

The case at hand is strikingly similar to Raich. In both, Congress exercised its Commerce Clause authority to regulate "quintessentially economic" activities, i.e., those involving the "production, distribution, and consumption of commodities." Id. at 2211. True, the regulated commodities differ; in Raich, the commodity was marijuana, here it is child pornography. But that distinction is immaterial. In both statutes Congress "directly" regulated economic activity in a "fungible commodity," id. at 2206, by, inter alia, prohibiting its possession. See also United States v. Buculei, 262 F.3d 322, 329 (4th Cir.2001) (holding that possession and production of child pornography "is economic in nature").

Moreover, in both instances Congress had a rational basis for concluding that prohibition of mere local possession of the commodity was essential to the regulation of "an established, albeit illegal, interstate market." Raich, 125 S.Ct. at 2206. Just as Congress rationally concluded that demand might draw homegrown marijuana into interstate markets, thereby "frustrat[ing] the federal interest in eliminating commercial transactions in the interstate market in their entirety," id. at 2207, so too might Congress rationally fear that homemade child pornography would find its...