U.S. v. McCalla

• Decision Date: 24 September 2008
• Docket Number: No. 07-50162.,07-50162.
• Citation: 545 F.3d 750
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Geoffrey David McCALLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 750

UNITED STATES of America, Plaintiff-Appellee, v. Geoffrey David McCALLA, Defendant-Appellant.

No. 07-50162.

United States Court of Appeals, Ninth Circuit.

Submitted July 15, 2008.^*

Filed September 24, 2008.

Shannon M. Dorvall, Santa Monica, CA, on behalf of defendant-appellant, Geoffrey David McCalla.

Thomas P. O'Brien, Christine C. Ewell, Rupa S. Goswami, Los Angeles, CA, on behalf of plaintiff-appellee, United States of America.

Appeal from the United States District Court for the Central District of California; Dale S. Fischer, District Judge, Presiding. D.C. No. CR-06-00384-DSF-1.

Before: BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON, and MILAN D. SMITH, JR., Circuit Judges.

RAWLINSON, Circuit Judge:

Appellant Geoffrey David McCalla (McCalla) was charged in a two-count indictment with producing and possessing child pornography in violation of federal statutes. McCalla filed two motions to dismiss the indictment for lack of jurisdiction and the district court denied both. McCalla pled guilty to Count One charging production of child pornography, conditioned only upon his ability to appeal the denial by the district court of his motion to dismiss under the Commerce Clause. On appeal, McCalla argues lack of federal jurisdiction under the Commerce Clause and lack of federal territorial jurisdiction under 18 U.S.C. § 7. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's rulings on both motions to dismiss.

I. BACKGROUND

In December, 2005, John B. Kuzma (Kuzma), Special Agent with the Department of Homeland Security (DHS), United States Immigration and Customs Enforcement (ICE), began investigating McCalla's possible use of a child pornography website. In the course of his investigation, Kuzma learned that McCalla had been arrested by the Los Angeles Police Department (LAPD) after a witness reported discovering images in McCalla's house depicting child pornography.

The images showed the witness's step-daughter (Child Victim 1), who appeared to be approximately five years old, as well as other children, engaging in sexually explicit conduct. In addition to these images, numerous other images depicting child pornography were retrieved from materials seized during a search of McCalla's residence and place of employment. Approximately 4,235 suspected child pornography images were recovered from standard file directories in McCalla's work computer's hard drive. Approximately 50 suspected child pornography movie files were also recovered.

Following his arrest and the discovery of these images, a federal grand jury returned a two-count indictment against McCalla. Count One charged McCalla with the production of child pornography in violation of 18 U.S.C. § 2251(a), (e). Count Two charged McCalla with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Id. at 13. Both counts included the jurisdictional requirement that the child pornography produced or possessed by McCalla was "produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer ..."

McCalla filed two motions to dismiss the indictment. In the first motion, McCalla argued lack of subject matter jurisdiction, specifically contending that the Commerce Clause did not grant Congress authority to regulate local production of child pornography. The district court rejected this argument, noting that in light of the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1, (2005), regardless of prior Ninth Circuit rulings, "the Ninth Circuit would now take the position that this statute was valid."

McCalla filed a subsequent motion to dismiss, arguing the absence of federal territorial jurisdiction because the events did not occur within the exclusive territory of the United States. The district court also denied this second motion.

Thereafter, McCalla entered into a conditional plea agreement with the government whereby he pled guilty to Count 1 of the indictment (production of child pornography). The plea agreement was conditioned upon McCalla's reservation of the right to seek appellate review of the district court's denial of the motion to dismiss "filed on or about August 11, 2006[the Commerce Clause argument]."

In the plea agreement, the parties stipulated to several facts, including:

• Beginning in or around January, 2003, and continuing to in or about September, 2004, McCalla took approximately 45 sexually explicit photographs of Child Victim 1.

• McCalla produced the pornographic images of this child using materials that had been mailed, shipped, or transported in interstate or foreign commerce. In particular, McCalla used a Sony digital camera that had been manufactured in Japan and transported in interstate and foreign commerce to California.

• Two compact discs containing child pornography that McCalla kept and used at home contained child pornographic images of Child Victim 1.

• Three compact discs containing child pornography that McCalla kept and used at work contained child pornographic images of Child Victim 1.

The district court accepted the guilty plea, and sentenced McCalla to 210 months' imprisonment followed by a lifetime of supervised release. McCalla timely appealed.

II. STANDARD OF REVIEW

"We review a district court's denial of a motion to dismiss an indictment on constitutional grounds de novo." United States v. Latu, 479 F.3d 1153, 1155 (9th Cir.2007) (citation omitted).

III. DISCUSSION

A. Commerce Clause Challenge

McCalla argues that Congress lacks authority under the Commerce Clause to regulate the noncommercial and wholly intrastate production of child pornography, and therefore, as applied to him, 18 U.S.C. § 2251(a) is unconstitutional.

McCalla makes two main arguments in support of his claim. First, McCalla argues that the Supreme Court's most recent decision discussing the Commerce Clause, Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), was wrongly decided and applies an incorrect legal standard of review. Second, McCalla argues that analyzing Section 2251(a) utilizing the factors articulated by the Supreme Court in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), reveals the statute's unconstitutionality.

To the extent McCalla premises his argument on an invitation to set aside or disregard United States Supreme Court precedent, we simply cannot accommodate him. As the Supreme Court has expressly stated, "it is this Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). Accordingly, in determining whether prosecution of the intrastate production of child pornography is authorized under the Commerce Clause, we are bound by the Supreme Court's decision in Raich.

Raich addressed the question of whether the Controlled Substances Act (CSA) was unconstitutional as applied to purely intrastate producers of marijuana for medical purposes under California's Compassionate Use Act. 545 U.S. at 5, 125 S.Ct. 2195. The Supreme Court reiterated that there are three general categories of activity that Congress's commerce power gives it the authority to regulate. "First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce." Id. at 16-17, 125 S.Ct. 2195 (citations omitted). It is this third category that was implicated in Raich, see id. at 17, 125 S.Ct. 2195, and which also is at issue in this case.

The Supreme Court ultimately held that the application of CSA provisions criminalizing the intrastate manufacture, distribution or possession of marijuana did not violate the Commerce Clause. Id. at 9, 125 S.Ct. 2195. In reaching this holding, the Raich court established several important principles that guide our decision. First, the Court reiterated that "[i]n assessing the scope of Congress' authority under the Commerce Clause, ... the task before [the Court] is a modest one.[The Court] need not determine whether respondent[ ]'s activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a `rational basis' exists for so concluding." Id. at 22, 125 S.Ct. 2195, citing United States v. Lopez, 514 U.S. 549, 557, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (emphasis added) (parallel citation omitted).

Second, in Raich, the Court reasoned that "[g]iven the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere ..., and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA." Id. (citation and footnote reference omitted).

Third, the Court emphasized, "[t]hat the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme." Id.

In reaching its holding that application of the CSA to purely intrastate production of marijuana was within Congress' authority under the Commerce Clause, the Supreme Court distinguished the CSA from those statutes that it struck as unconstitutional in Lopez (holding that the Gun-Free School Zones Act was an invalid exercise of Congress' Commerce Clause authority) and Morrison (striking the Violence Against Women Act). The Court distinguished Raich from Lopez and Morrison in part based on the fact that in those cases, the statutes in question had no connection to commerce or economic enterprise. Raich, 545 U.S. at 23-25, 125 S.Ct. 2195. In contrast, the CSA...