U.S. v. Matthews
| Decision Date | 02 February 2004 |
| Docket Number | No. CR-02-S-549-M.,CR-02-S-549-M. |
| Citation | 300 F.Supp.2d 1220 |
| Parties | UNITED STATES of America, v. Justin Wayne MATTHEWS, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
P. Russell Steen, Birmingham, AL, for defendant.
Alice H. Martin, U.S. Attorney, James E. Phillips, U.S. Attorney's Office, U.S. Marshal, United States Marshal's Office, U.S. Probation, United States Probation Office, Birmingham, AL, for United States of America.
This case is before the court on defendant's motion to reconsider his motion to dismiss the indictment.1 The motion challenges the authority of Congress to regulate intrastate possession of a home-made video tape depicting defendant engaged in sexual acts with a minor.
Justin Wayne Matthews made a video tape recording of himself engaged in various, consensual, sexual acts with a minor on some uncertain date during July or August of 2002.2 Matthews then was twenty-two years of age, and the juvenile female was sixteen.3
The government filed a two-count indictment charging Matthews with sexual exploitation of children in violation of 18 U.S.C. § 2251(a), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The government does not allege that any of the "actual images of child pornography produced by defendant in the conduct charged in the indictment were mailed, shipped, or transported in interstate commerce,"4 nor does the government contend that defendant intended to sell, distribute, or exchange the tape or copies of it. Rather, federal jurisdiction is premised upon the fact that the camera used by defendant,5 and the tape medium upon which images and sounds were recorded,6 previously had traveled in interstate and foreign commerce.7
No decent citizen condones sexual relations between an adult and a minor, or the exploitation of minors for the satisfaction of deviate sexual desires. That is why Alabama, like many other states, has criminalized the conduct charged in this indictment.8 Thus, the question of whether Justin Wayne Matthews should be subject to criminal sanctions for his actions is not the issue confronting this court.9
Rather, the fundamental question raised by defendant's motion is whether Congress exceeded its powers under the Commerce Clause of the United States Constitution when enacting statutes which, when applied to facts such as those presented here, make the simple intra-state production and possession of visual depictions of a minor engaging in sexually explicit conduct a federal offense, even though those images were not mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, and there is no evidence that the visual depictions were intended for interstate distribution or economic activity of any kind, including exchange of the pornographic tape recording for other prohibited materials.
Count One of the indictment is based upon 18 U.S.C. § 2251(a),10 which provides that:
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 (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [or] 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.
Id. ().
A "minor" is defined by 18 U.S.C. § 2256(1) as "any person under the age of eighteen years," while the term "visual depiction" includes "undeveloped film and videotape." 18 U.S.C. § 2256(5). The phrase "sexually explicit conduct" is defined by 18 U.S.C. § 2256(2) as meaning, among other things, "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, ... [and] masturbation...."
Count Two of the indictment is based upon 18 U.S.C. § 2252A(a)(5)(B),11 which makes it a federal offense for any person to
knowingly possess [ ] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.
Id. ().
The term "child pornography" is defined by 18 U.S.C. § 2256(8)(A) as meaning
any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct....
The statutes upon which the charged offenses are based were enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977 ("1977 Act"), Pub.L. No. 95-225, 92 Stat. 7 (1978), 18 U.S.C. § 2251 et seq. The 1977 Act is a comprehensive scheme that prohibits the production, receipt, possession, transmission, and sale of child pornography.
During the process of enacting the 1977 Act, the Department of Justice expressed concern that the legislation was "jurisdictionally deficient." See S.Rep. No. 95-438 at 25 (), reprinted in 1978 U.S.C.C.A.N. 40, 60, also available at 1977 WL 9660. Writing on behalf of the Department, then-Assistant Attorney General Patricia M. Wald stated:
[T]he bill would cover a purely intrastate photographing and distribution operation on the theory that commerce is "affected" in that the processing of the film or photographs utilize materials that moved in interstate commerce.... In our opinion, the investigation or prosecution of purely local acts of child abuse should be left to local authorities with federal involvement confined to those instances in which the mails or facilities of interstate commerce are actually used or intended to be used for distribution of the film or photographs in question.
S.Rep. No. 95-438 at 26, 1978 U.S.C.C.A.N. at 61 (emphasis supplied).
As originally enacted, the provisions now codified in 18 U.S.C. §§ 2251 and 2252 included a requirement that visual depictions of child pornography actually move (or proof that they were intended for movement) in interstate or foreign commerce. The relevant portions of the original version of the 1977 Act read as follows:
Section 2251. 18 U.S.C. 2251. Sexual exploitation of children.
(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, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, shall be punished as provided under subsection (c), if such person knows or has reason to know that such visual or print medium will be transported in interstate or foreign commerce or mailed, or if such visual or print medium has actually been transported in interstate or foreign commerce or mailed.
...
Section 2252. 18 U.S.C. 2252. Certain activities relating to material involving the sexual exploitation of minors.
(A) the producing of such visual or print medium involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual or print medium depicts such conduct shall be punished as provided in subsection (b) of this section. Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 7-8 (1978) (emphasis supplied).
The 1977 Act was amended by the Child Protection Act of 1984. The amendments were prompted by the Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), which upheld the constitutionality of a New York statute, and found that the state's interest in protecting children outweighed a need for protection of child pornography under the First Amendment. See Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204; see also H.R. Rep. 98-536, at 1-2, reprinted in 1984 U.S.C.C.A.N. 492, 492-93, available at 1983 WL 25391.12 The 1984 amendments sought to eliminate the requirements of the 1977 Act to prove "obscenity" and "commercial purpose," as well as to raise the age of protection of children under the Act from sixteen to eighteen years. See H.R. Rep. 98-536, at 5, reprinted in 1984 U.S.C.C.A.N. 492, at 496...
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