U.S. v. Holston

• Decision Date: 04 September 2003
• Docket Number: Docket No. 02-1292.
• Citation: 343 F.3d 83
• Parties: UNITED STATES of America, Appellee, v. Eric HOLSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

343 F.3d 83

UNITED STATES of America, Appellee, v. Eric HOLSTON, Defendant-Appellant.

Docket No. 02-1292.

United States Court of Appeals, Second Circuit.

Argued: April 4, 2003.

Decided: September 4, 2003.

James P. Harrington, Harrington & Mahoney, Buffalo, NY, for Defendant-Appellant.

Paul J. Campana, Assistant United States Attorney, for Michael A. Battle United States Attorney, Western District of New York, Buffalo, NY, for Appellee.

Before: OAKES, KEARSE, and B.D. PARKER, JR., Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

Eric Holston appeals from a judgment of conviction entered in the United States District Court for the Western District of New York (Richard Arcara, Chief Judge), following his conditional plea of guilty to one count of producing visual depictions of sexually explicit conduct involving a minor, in violation of 18 U.S.C. § 2251(a). Holston's plea preserved his right to appeal the denial of his motion to dismiss the indictment on the ground that § 2251(a), which prohibits the production of pornographic depictions involving a minor "using materials that have been mailed, shipped, or transported in interstate or foreign commerce," was an unconstitutional exercise of Congress's authority under the Commerce Clause. Because we find § 2251(a) to be constitutional, we affirm.

BACKGROUND

At the time of his arrest in February 2001, Eric Holston lived in the groundfloor apartment of a split-level, two-family dwelling in Buffalo, New York. A single mother with three minor daughters — aged 10, 13, and 14 — lived in one of the upstairs apartments. Several days before Holston's arrest, FBI agents executed a search warrant at his apartment and seized video recording equipment and several videotapes depicting Holston engaged in sexually explicit acts with two of the girls. One tape portrayed the 10-year-old girl as Holston touched her genitals, and another tape depicted the 14-year-old girl as she undressed herself and simulated masturbation. Holston was arrested and subsequently charged with producing child pornography in violation of § 2251(a) and with possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

Holston waived indictment and, pursuant to a plea agreement, pleaded guilty to a one-count information charging him with violating § 2251(a). As part of the factual basis for the plea, the agreement identified various items such as videotapes and video recording equipment that had been used in the production of the depictions and the out-of-state locations where each had been manufactured. Specifically, the agreement indicated that a Panasonic brand "Palmcorder" and JVC and TDK brand minicassettes manufactured in Japan, a JVC adapter made in Malaysia, and two videocassette recorders and a Sony brand videocassette tape manufactured outside New York State, were used to produce the depictions. The plea agreement preserved Holston's right to appeal in the event the District Court denied his anticipated motion to dismiss the information on the basis that § 2251(a) was unconstitutional. After the District Court denied the motion, Holston pleaded guilty and was sentenced principally to ten years' imprisonment and three years' supervised release. Following entry of judgment, Holston appealed.

DISCUSSION

Holston raises facial and as-applied challenges to the constitutionality of § 2251(a). Citing United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), his main contention is that Congress's attempt, through § 2251(a)'s materials-in-commerce jurisdictional prong, to reach child pornography created for personal use and which does not cross state lines is an unconstitutional exercise of the Commerce Clause power because the jurisdictional prong is too attenuated from the conduct sought to be regulated. Holston further contends that, even if facially valid, the statute is unconstitutional as applied to him because his conduct was not commercial and did not implicate interstate commerce because the depictions never crossed state lines. We review a challenge to the constitutionality of a statute de novo. United States v. Griffith, 284 F.3d 338, 345 (2d Cir.2002); United States v. Bianco, 998 F.2d 1112, 1120 (2d Cir.1993).

I. The Federal Child Pornography Statutes

Section 2251 provides:

(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, ... with the intent that such minor 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), [1] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [2] 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 [3] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

18 U.S.C. § 2251(a) (2000) (emphasis added). Appellant was prosecuted on the basis of the second jurisdictional prong and the Government has not alleged that either of the other jurisdictional bases applies.

Section 2251 was enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977 (the "Act"), Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 8 (1978), (codified at 18 U.S.C. §§ 2251 et seq.). The Act is a broad regulatory scheme that prohibits, in addition to the production of child pornography, the receipt, transmission, and possession of child pornography. See 18 U.S.C. §§ 2252, 2252A. As originally enacted, § 2251(a) did not contain the jurisdictional language at issue here. Instead, it criminalized the production of pornographic depictions involving minors only if the producer knew, or had reason to know, that the depiction would be transported in interstate commerce, or if it was, in fact, transported in interstate commerce.

When passed in 1978, the Act was supported by congressional findings that "child pornography ... ha[s] 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. 95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42-43, available at 1977 WL 9660. Congress also found that "because of the vast potential profits in child pornography" — its low production and reproduction costs and high retail prices — the industry was "growing at a very rapid rate." Id. at 7, 1978 U.S.C.C.A.N. at 44.

The Act was amended in 1984 to eliminate the requirement that the production, receipt, transportation, and distribution of child pornography be for a commercial purpose. See Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204; see also H.R. Rep. 98-536, at 10 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 501, available at 1983 WL 25391. This change followed Congress's conclusion that, within the unique realities of the child pornography market, much of the production and trafficking was non-commercial. See, e.g., id. at 2, 1984 U.S.C.C.A.N. at 493 ("Many of the individuals who distribute materials covered by 18 U.S.C. Section 2252 do so by gift or exchange without any commercial motive ...."); id. at 17, 1984 U.S.C.C.A.N. at 508 ("The bulk of the child pornography traffic is non-commercial."; "Generally, the domestic material is of the `homemade' variety, while the imported material is produced by commercial dealers."); see also id. at 16, 1984 U.S.C.C.A.N. at 507 ("Most often, our investigations have resulted in the identification of collectors, some of whom sell their material while others do not. Those who do not sell their material often loan or trade collections with others who share their interest."). The House Report on the amendment indicated that because much of the pornographic material that concerned Congress was "homemade" and the subject of barter and informal exchanges through underground distribution networks, a statutory regime that required a commercial purpose left a significant enforcement hole that the 1984 amendment was intended to fill.

In 1998, Congress amended § 2251 by adding a new jurisdictional basis which required that the materials used to produce the depictions "have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer." Pub.L. No. 105-314, § 201(a), 112 Stat. 2974, 2977 (1998) (codified at 18 U.S.C.A. § 2251(a)). The legislative history indicates two reasons for the amendment. The first was to correct an anomaly between the analogous possession statutes, 18 U.S.C. §§ 2252(a)(4)(B), 2252A(a)(4)(B), & 2252A(a)(5)(B), which contained equivalent jurisdictional language,¹ and the production statute, § 2251, which, as originally enacted, did not. The second was to extend the statute to cases where proof of the interstate transportation of the depictions, or proof of the pornographer's knowledge as to the interstate transportation, was absent. See H.R. Rep. 105-557, at 26-27 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 695, available at 1998 WL 285821.

II. The Commerce Clause under Lopez and Morrison

Holston contends that the materials-in-commerce prong of § 2251(a) exceeds Congress's authority under the Commerce Clause in light of Lopez and Morrison. In these two decisions, the Supreme Court "reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited." Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 173, 121 S.Ct. 675,...