U.S. v. Maxwell

• Decision Date: 20 April 2006
• Docket Number: No. 03-14326.,03-14326.
• Citation: 446 F.3d 1210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James MAXWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

446 F.3d 1210

UNITED STATES of America, Plaintiff-Appellee, v.James MAXWELL, Defendant-Appellant.

No. 03-14326.

United States Court of Appeals, Eleventh Circuit.

April 20, 2006.

Dionja L. Dyer and Mara Allison Guagliardo, Fed. Pub. Defenders, Tampa, FL, for Maxwell.

Tamra Phipps and Susan Hollis Rothstein-Youakim, Tampa, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before EDMONDSON, Chief Judge, and TJOFLAT and COX, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us on remand from the Supreme Court with instructions to reconsider our decision, 386 F.3d 1042(11th Cir.2004), in light of the Court's recent opinion in Gonzales v. Raich,545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1(2005).United States v. Maxwell,___ U.S. ___, 126 S.Ct. 321, 163 L.Ed.2d 29(2005)(mem.).Upon reconsideration, we determine that Raich mandates that we reverse our prior decision, in which we held that 18 U.S.C. § 2252A was unconstitutional as applied to the defendant's conduct.Because this determination only affects parts II.D and III of our original opinion, we reinstate the remainder of the opinion and affirm the defendant's conviction.Part I briefly lays out the facts of this case.Part II summarizes the reasoning of our prior opinion.Part III discusses the Supreme Court's decision in Raich and applies it to this case.Part IV briefly concludes.

I.

Our prior opinion extensively lays out the facts of this case, Maxwell,386 F.3d at 1045-49, so we only provide context here.James Maxwell was convicted of two counts of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),¹ a provision of the Child Pornography Prevention Act of 1996 (CPPA), Pub.L. No. 104-208, § 121,110 Stat. 3009-26(codified as amended in scattered sections of 18 U.S.C. ch. 110).He had been renting a room in Alberta Wallace's apartment in St. Petersburg, Florida.After growing suspicious that Maxwell was using Wallace's computer to obtain and view child pornography, Wallace contacted the police and permitted them to search her computer and apartment, where they found disks containing numerous images of child pornography.Maxwell,386 F.3d at 1045.The prosecution entered several pieces of evidence as part of its case in chief, including several of the disks, testimony of law enforcement officers pertaining to the age of persons on the disks, and a phone call Maxwell placed to his pastor — while incarcerated on unrelated charges — regarding the disks at Wallace's apartment.Id. at 1046-49.To satisfy the jurisdictional requirement of the statute, the Government offered the following stipulation, which the court read to the jury:

It is stipulated and agreed between the parties that the computer zip disk that is the basis for Count 1 of the Indictment, and the computer floppy disk that is the basis for Count 2 of the Indictment, were both manufactured outside the State of Florida and have been mailed, shipped or transported in interstate commerce.

Id. at 1049.In other words, the Government relied upon the "produced using materials that have been mailed, or shipped or transported in interstate ... commerce" clause of section 2252A(a)(5)(B) to establish jurisdiction in this case.Maxwell put on no defense.Id.

II.

On appeal, Maxwell claims that § 2252A is unconstitutional as applied to the facts of his case.Our earlier analysis of Maxwell's constitutional challenge began with a summary of the Supreme Court's Commerce Clause jurisprudence to date, noting that Congress may constitutionally regulate three categories of activities:

(1) the use of the channels of interstate commerce;

(2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and

(3) those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Maxwell,386 F.3d at 1054-55(internal quotation marks omitted)(quotingUnited States v. Lopez,514 U.S. 549, 558-59, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626(1995)(citations omitted)).Upon concluding that the regulation could be sustained, if at all, only as an exercise of Lopez 3 authority, we proceeded to determine whether intrastate possession of child pornography (produced using materials that have traveled in interstate commerce) could be said to "substantially affect interstate commerce."In so doing, we followed Supreme Court guidance, and analyzed four considerations relevant to assessing whether a given activity "substantially affects" interstate commerce:

1) whether the statute in question regulates commerce "or any sort of economic enterprise"; 2) whether the statute contains any "express jurisdictional element which might limit its reach to a discrete set" of cases; 3) whether the statute or its legislative history contains "express congressional findings" that the regulated activity affects interstate commerce; and 4) whether the link between the regulated activity and a substantial effect on interstate commerce is "attenuated."

Maxwell,386 F.3d at 1056(quotingUnited States v. McCoy,323 F.3d 1114, 1119(9th Cir.2003)(quotingUnited States v. Morrison,529 U.S. 598, 610-12, 120 S.Ct. 1740, 1750-51, 146 L.Ed.2d 658(2000))).

In analyzing the first consideration, we found "nothing commercial" about the possession of child pornography — an activity that "entails no transactions, no consumption of goods or services, and no necessary resort to the marketplace."Id. at 1056.We noted that "[t]he regulation at issue in Maxwell's case ... has no clear economic purpose.It makes no effort to control national trade by regulating intrastate activity.Instead, it attempts to regulate primary conduct directly...."Id. at 1057.

Moving to the "attenuated" prong of the Supreme Court's enumerated considerations, we reasoned that the aggregation approach to determining whether an activity's effect on interstate commerce is "attenuated,"seeWickard v. Filburn,317 U.S. 111, 127-28, 63 S.Ct. 82, 90, 87 L.Ed. 122(1942)("That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial."), is not applicable to "intrastate criminal activity of a noneconomic nature."Maxwell,386 F.3d at 1059.²As such, we determined that any relationship between Maxwell's individual conduct and a substantial effect on interstate commerce was "exceedingly attenuated."Id. at 1061.

We then examined the effect of the statute's jurisdictional element and whether it "`would ensure, through case-by-case inquiry, that the' charged conduct `has the requisite nexus with interstate commerce.'"Id. at 1061(quotingLopez,514 U.S. at 549, 115 S.Ct. at 1625).Finding it difficult to imagine any modern-day photograph taken and developed without ever utilizing any material that originated outside of a given state, we concluded that the jurisdictional requirement was "patently insufficient" as a mechanism for confining the statute's reach to constitutionally permissible applications.Id. at 1063.

Finally, we analyzed the fourth of the Morrison/Lopez factors: whether the legislative history contains express findings regarding the effect of the regulated conduct on interstate commerce.We noted that "little can be gleaned from [the legislative] findings about the impact of child pornography on interstate commerce, and particularly the impact of possessing child pornography intrastate.Instead, the vast majority of the findings support the broader proposition that child pornography ... is bad and harmful to children."Id. at 1065.

Accordingly, we found "no rational basis for concluding that the conduct for which Maxwell was convicted substantially affects or affected interstate commerce....Consequently, § 2252A's application to Maxwell's conduct [could not] be sustained as a valid exercise of Commerce Clause authority."Id. at 1067.

III.

Our prior opinion in this case was decided without benefit of the Supreme Court's most recent Commerce Clause holding handed down in Gonzales v. Raich,545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1(2005).Because the Court's reasoning in Raich calls into question much of our earlier analysis, we are now obliged to reverse course.

A.

In Raich,the Court was presented with the question of whether Congress had the authority, pursuant to the Necessary and Proper and Commerce Clauses, U.S. Const. art. I, § 8, cls. 3,18, to prohibit, via the Controlled Substances Act (CSA),21 U.S.C. § 801 et seq., "the local cultivation and use of marijuana in compliance with California law."Raich,125 S.Ct. at 2199.The Court began its analysis by noting that its "case law firmly establishes Congress' power to regulate purely local activities that are part of an economic `class of activities' that have a substantial effect on interstate commerce."Id. at 2205(citingPerez v. United States,402 U.S. 146, 151, 91 S.Ct. 1357, 28 L.Ed.2d 686(1971);Wickard,317 U.S. at 128-29, 63 S.Ct. at 87);see alsoid. at 2206("In this vein, we have reiterated that when `a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'"(emphasis omitted)(quotingLopez,514 U.S. at 558, 115 S.Ct. 1624, 131 L.Ed.2d 626(quotingMaryland v. Wirtz,392 U.S. 183, 196 n.27, 88 S.Ct. 2017, 2024 n.27, 20 L.Ed.2d 1020(1968))(internal quotation marks omitted))).

The Court then discussed its opinion in Wickard, which upheld the application of quota regulations, passed pursuant to the Agricultural Adjustment Act of 1938, to petitioner's production of wheat for wholly personal consumption.Our earlier opinion in this case dis...