U.S. v. Kallestad

• Citation: 236 F.3d 225
• Decision Date: 19 December 2000
• Docket Number: No. 98-51089,98-51089
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES O. KALLESTAD, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 225

236 F.3d 225 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES O. KALLESTAD, Defendant-Appellant.

No. 98-51089

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 19, 2000

Appeal from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this 28 U.S.C. § 2255 case we consider a challenge to the constitutionality of 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of sexually explicit depictions of minors if those depictions or the materials used to produce them were shipped in interstate commerce.¹ We are persuaded that Congress could rationally conclude that to regulate a national market in child pornography it was necessary to regulate its local possession.

I

Government agents found a large number of nude photos and films of women, some of whom appeared to be minors, in Kallestad's home. They also found notes he made regarding the women, including their names, addresses, and phone numbers. Agents used these notes to locate some of the women, and they discovered that several of them were minors at the time the photos and films were taken.

Kallestad had advertised in the Austin American Statesman newspaper for "slender female nude models." Some of the advertisements stated that the age of the "models" was "unimportant." Several of the girls who responded to the advertisement were 16 to 17 years old, and most of them told Kallestad their ages and that they were high school students. Kallestad took pictures and made films of the girls engaged in sexually explicit conduct and in some instances of them engaging in such conduct with him. The photos and films were made at Kallestad's home in Austin, Texas. The film used to make the photos and films was manufactured outside of Texas.

Kallestad was convicted of numerous offenses including six counts charging violations of section 2252(a)(4)(B).² On direct appeal, we vacated his sentence, finding an error in his sentence.

After Kallestad was resentenced, he moved for relief under 28 U.S.C. § 2255. He argues that his conviction for possession of material involving the sexual exploitation of minors should be vacated because the statute making that conduct an offense exceeds the authority of Congress under the Commerce Clause. Kallestad did not raise this issue on direct appeal.

The magistrate recommended denying relief, and the district court did so, also denying a certificate of appealability. We granted a certificate of appealability on the issue of the constitutionality of the statute prohibiting possession of materials involving the sexual exploitation of minors.

II

The government argues that Kallestad's challenge is barred because he did not raise the question on direct appeal. A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result.³ Kallestad argues that his counsel was ineffective for not raising the issue on direct appeal.

It is true that ineffective assistance of counsel can meet the cause and prejudice requirement for overcoming procedural default in a section 2255 motion.⁴ We do not consider the contention further because the government failed to preserve the issue. The government asserted the procedural bar before the magistrate, but filed no objection to the magistrate's proposed findings and recommendations even though Kallestad filed objections and the district court conducted a de novo review of the case. The government must invoke the procedural bar in the district court to raise it here.⁵ A party who fails to file written objections to a magistrate judge's proposed findings and recommendations waives the objection, and on appeal we will review the issue for plain error only.⁶ The district court did not err in reaching the merits of the constitutional challenge.

III

Kallestad argues that section 2252(a)(4)(B), which prohibits mere possession of child pornography, is beyond Congress's power under the Commerce Clause. We review this constitutional challenge to a federal statute de novo.⁷

Similar arguments have been made in, and rejected by, other courts. The Third Circuit, in United States v. Rodia,⁸ rejected a similar challenge by a defendant convicted of possessing child pornography. The court noted that, in passing the 1978 Protection of Children Against Sexual Exploitation Act, Congress explicitly found that child pornography was a "multi-million dollar industry," and the court concluded that there was a "substantial interstate market" in child pornography.⁹ The Rodia court then analogized to Wickard v. Filburn,¹⁰ and upheld the statute.¹¹ Other courts have upheld section 2252(a)(4)(B) based on its jurisdictional hook, which requires that either the pornography itself, or the material used to manufacture it, has moved in interstate commerce.¹²

In United States v. Lopez,¹³ the Supreme Court defined three categories of activity Congress may regulate under the Commerce Clause: channels of interstate commerce, persons or things traveling in interstate commerce, and activities having a substantial effect on interstate commerce.¹⁴ In United States v.

Morrison,¹⁵ the Court clarified how the third category is to be analyzed. Courts are directed to inquire (1) whether the statute regulates "commerce," or an activity that might be deemed an "economic activity," broadly defined; (2) whether the statute has an "express jurisdictional element" that restricts its application to activities that have "an explicit connection with or effect on interstate commerce"; (3) whether congressional findings support the judgment that the activity in question has a substantial effect on interstate commerce; and (4) whether the act made an offense has an attenuated relationship to that substantial effect on interstate commerce.¹⁶

Kallestad argues that his offense falls within the third category, and like the crime of possessing a gun near a school zone, does not have a sufficiently substantial effect on interstate commerce to fall within Congress's authority. He challenges section 2252(a)(4)(B) facially and as applied. We find his challenge unpersuasive.

A

Applying the first Morrison factor, the conduct being regulated here is commercial in character, defined broadly. As the 1986 Attorney General's Commission on Pornography found, much of the interstate traffic in child pornography "involves photographs taken by child abusers themselves, and then either kept or informally distributed to other child abusers."¹⁷ Such pornography is exchanged through the mails,¹⁸ and also becomes the basis for commercial child pornography magazines, which are made not with photographs taken by the magazine producers, but rather with homemade photographs submitted by private child abusers.¹⁹ This case is therefore distinct from Lopez, as the child pornography statute "represents Congressional regulation of an item bound up with interstate attributes and thus differs in substantial respect from legislation concerning possession of a firearm within a purely local school zone."²⁰ Moreover, Wickard affirms that, when a person produces for their own consumption a product that is traded in an interstate market, his conduct is economic in character. Kallestad may not have intended to sell his photographs, but then Filburn never intended to sell his wheat.²¹ In this regard, Kallestad's conduct was unlike the rape at issue in Morrison.

B

Section 2252(a)(4)(B) also contains a jurisdictional hook.²² Section 2252(a)(4)(B)

makes it an offense to possess child pornography that "has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced by using materials which have been mailed or so shipped or transported."²³ No evidence demonstrated that Kallestad's pictures moved in interstate commerce, but the evidence established that his film did.

This jurisdictional element is not alone sufficient to render section 2252(a)(4)(B) constitutional. That argument, advanced by the government, has no principled limit. Where the relationship between the interstate and local activity is attenuated, a jurisdictional hook alone cannot justify aggregating effects upon interstate commerce to find Congressional power under the Commerce Clause. It is one thing for Congress to prohibit possession of a weapon that has itself moved in interstate commerce, but it is quite another thing for Congress to prohibit homicides using such weapons.

What the jurisdictional hook does accomplish in this case, however, is to limit prosecutions under section 2252(a)(4)(B) to a smaller universe of provable offenses. It further reflects Congress's sensitivity to the limits upon its commerce power, and Congress's express interest in regulating national markets.

C

Ample findings establish the proposition that local possession of child pornography impacts interstate commerce. In passing the original 1977 Act, Congress found that child pornography was harmful to children, and represented "a large industry - representing millions of dollars in annual revenue - that operates on a nationwide scale and relies heavily on the use of the mails and other instrumentalities of interstate and foreign commerce."²⁴ Even then Congress did not reach for local possession. That effort, now at issue, came only after the widely reported Meese Commission extensively documented the interstate, commercial nature of child pornography.²⁵

These findings show that child pornography is a growing, predatory business that exploits and injures the most vulnerable among us. Congress found that the child pornography trade operates across the United States, out of major cities and small towns alike, to reach consumers nationwide.²⁶

D

We come, therefore, to the fourth Morrison factor...