U.S. v. Jeronimo-Bautista
| Citation | 319 F.Supp.2d 1272 |
| Decision Date | 20 May 2004 |
| Docket Number | No. 2:04-CR-81 TS.,2:04-CR-81 TS. |
| Parties | UNITED STATES of America, Plaintiff, v. Virgilio JERONIMO-BAUTISTA, et. al., Defendants. |
| Court | U.S. District Court — District of Utah |
Michele M. Christiansen, Michael S. Lee, U.S. Attorney's Office, Salt Lake City, UT, for Plaintiff.
Mary C. Corporon, Corporon & Williams PC, Loni F. DeLand, Richard P. Mauro, Salt Lake City, UT, for Defendants.
This matter is before the Court on Defendant Virgilio Jeronimo-Bautista's Motion to Dismiss for Lack of Federal Jurisdiction, filed March 10, 2004. A hearing was held thereon on April 21, 2004. The Court, having read the pleadings and the file, having heard arguments of counsel, being otherwise fully advised, and with due deference to Congressional authority, will hereby GRANT Defendant's Motion.
On February 11, 2004, Defendant was charged with a single count of Sexual Exploitation of Children, in violation of 18 U.S.C. § 2251(a), and 18 U.S.C. §2 — Aiding and Abetting.1 On February 18, 2004, Defendant entered a plea of not guilty to the charge.
Count I is the only count pending against Defendant Jeronimo-Bautista, and he is the only Defendant alleging lack of federal jurisdiction in this case. As such, the Court will hereinafter refer to Mr. Jeronimo-Bautista simply as "Defendant."
Fed.R.Crim.P. 12(b) provides for a pre-trial challenge to a defect in an indictment. Specifically with regard to whether the Court has jurisdiction, Rule 12(b)(3)(B) states that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction ..." "An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." 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).
For purposes of considering this Motion to Dismiss, the Court makes all factual inferences in favor of the government and assumes that the government could prove the facts alleged against Defendant at a trial held herein. In other words, the Court will assume that the government can prove the factual basis for its criminal allegations and will examine the legal sufficiency of the alleged federal jurisdiction as contained in the Indictment.
Fed.R.Crim.P. 12(d) requires that, "[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record." See Id. The Court makes the following essential findings of fact, all inferences from which are made in favor of the government, for the purposes of this Motion to Dismiss for Lack of Federal Jurisdiction. The following facts are not disputed by Defendant, for purposes of this Motion only.
On or about January 29, 2004, a Salt Lake County Sheriff's Department Deputy responded to a call from a one-hour photo laboratory in Salt Lake County — which is located within the Central Division of the District of Utah — to check on certain suspicious photographs that had been dropped off to be developed. The manager of the photo lab informed the Deputy that a Hispanic male had brought in a roll of analog film to be developed earlier that evening. During the development process, an employee noticed that the photos appeared to depict the sexual assault of a minor female (hereinafter "the victim"). It was later determined that the victim was 13 years old at the time of the assault. The photos, which were confiscated by the Deputy, depicted the victim, who appeared to be unconscious or dead,2 being sexually assaulted by multiple men.3
For purposes of this Motion, the Defendant concedes that, on or about January 29, 2004, Defendant and his co-defendants were in the company of the victim. At some point on the evening in question, the victim became intoxicated and/or disabled. The three Defendants and the victim were in an unoccupied private residence in Utah at the time of the assault.
While the victim was unconscious, one or more of the Defendants removed the clothing of the victim, while in the presence of one or more of the other Defendants. The Defendants had a Kodak camera which was not manufactured within the State of Utah. The Defendants and/or each of them then proceeded to take photographs of the naked victim being sexually assaulted by each of the Defendants.
It is undisputed that each of the Defendants is a citizen of Mexico and resides in the State of Utah. The victim in this case was born within the State of Utah, and she was not transported across state lines, or internationally, for purposes of engaging in the behavior in question. The 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 any of the Defendants had any intention of so transmitting or storing the images.
All three Defendants in this case have been charged in state court with Sexual Exploitation of a Minor. Those state criminal prosecutions are currently pending in state court and are based upon the same facts and circumstances giving rise to the criminal allegations in this federal proceeding.
Count I of the Indictment pending against Defendant alleges as follows:
On or about January 29, 2004, in the Central Division of the District of Utah, VIRGILIO JERONIMO-BAUTISTA ... defendant[] herein, did knowingly employ, use, persuade, induce, entice, and coerce a minor, A.B., 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 [his co-defendants] therein; all in violation of Title 18, United States Code, Sections 2251(a) and 2 and punishable pursuant to Title 18, United States Code, Section 2251(d).
Defendant was indicted under 18 U.S.C. § 2251(a), which reads as follows:
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, or in any Territory or Possession of the United States, 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 (e), 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.
(emphasis added).
The government does not allege, and the Indictment does not accuse, that Defendant knew or had reason to know that the visual depictions at issue were transported in interstate commerce, nor is it alleged that such visual depiction was actually transported in interstate commerce. Rather, federal jurisdiction is premised upon the fact that the camera used by Defendant, and the film upon which the images were recorded, previously had traveled in interstate and foreign commerce. As the government argues in its memorandum: "[n]either the Kodak Advantix camera or [sic] the Kodak Advantix film containing the negatives of the images were manufactured within the State of Utah, and had to cross state lines to arrive in Utah." Govt. Opposition Memo at p. 4.
Defendant contends that his alleged actions, even if proven, do not impact any federal interest or matter and do not involve any significant or substantial connection to interstate commerce. Defendant concedes that his actions may constitute a state crime (and he is being charged for such), but argues that no federal jurisdiction exists in this case.
The government counters that the statute is technically complied with, and that its application in this case is a proper exercise of federal jurisdiction.
The Commerce Clause — found at Section 8, clause 3 to Article I of the United States Constitution — grants to Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Chief Justice Marshall first defined the nature of Congress' power under the Commerce Clause in the landmark case of Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824): See also United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
The Supreme Court has reiterated that "[t]he Constitution creates a Federal Government of enumerated powers." United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). That "enumeration presupposes something not enumerated." Gibbons at 195, 9 Wheat. 1 (emphasis added). The Lopez court quoted James Madison to support the fundamental Constitutional principle that The Federalist No. 45, ...
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U.S. v. Smith, No. 03-13639.
...defendant's possession of photos of himself engaged in consensual sex with a seventeen-year-old), United States v. Jeronimo-Bautista, 319 F.Supp.2d 1272, 1277-83 (D.Utah 2004) (holding § 2251(a) unconstitutional as applied to the purely local crime of a defendant who took pictures of, and p......
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U.S. v. Jeronimo-Bautista
...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 This case arises out of Mr. Jeronimo-Bautista's motion pursuant to FED.R.CRIM.P. 1......