U.S. v. McCoy

• Decision Date: 20 March 2003
• Docket Number: No. 01-50495.,01-50495.
• Citation: 323 F.3d 1114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rhonda Anne McCOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.3d 1114

UNITED STATES of America, Plaintiff-Appellee, v. Rhonda Anne McCOY, Defendant-Appellant.

No. 01-50495.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2002.

Decided March 20, 2003.

Angela M. Krueger, Federal Defenders of San Diego, Inc, San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Anne K. Perry, Assistant United States Attorney, Appellate Section, Criminal Division, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Lloyd D. George, District Judge, Presiding. D.C. No. CR-01-00101-LDG.

Before REINHARDT, TROTT and TASHIMA, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge TROTT.

OPINION

REINHARDT, Circuit Judge.

Appellant Rhonda McCoy entered a conditional plea of guilty to possession of child pornography after photo shop employees discovered a picture of her and her daughter with their genital areas exposed. Specifically, she reserved the right to appeal on constitutional grounds the denial of her motion to dismiss the charges against her. In her appeal, McCoy challenges the section of the federal statute that prohibits the possession of child pornography made with materials that have traveled in interstate commerce, 18 U.S.C. § 2252(a)(4)(B), asserting that the provision constitutes an unconstitutional exercise of Congress's power under the Commerce Clause.

We hold that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

I. BACKGROUND

The facts underlying the charge to which McCoy pleaded guilty arise from a single photograph taken in April 2000. The government does not allege that Rhonda McCoy, or her husband Jonathan McCoy, were or are commercial producers of child pornography. At the time charges were filed against the McCoys, the couple had two children: Kala, a ten-year-old daughter, and a twenty-month-old son.¹ The family lived in housing provided by the Navy in San Diego, where Jonathan McCoy served as a Naval Petty Officer.

Sometime in April 2000, Rhonda, Jonathan, and Kala were spending an evening at home, painting Easter eggs and taking family photographs. Rhonda, who, according to the presentence report, has a substance abuse problem as well as mental health problems, had substantial amounts of alcohol that night. At some point during the evening, Rhonda and Kala, partially unclothed, posed side by side for the camera, with their genital areas exposed. This pose was captured in one photograph.

Approximately two months later, Rhonda left five rolls of film with the Navy Fleet Exchange for processing. Shortly thereafter, Rodd Wilson, a loss prevention manager for the Exchange, contacted the U.S. Naval Criminal Investigation Service and informed it of the existence of photographs that appeared to present a child in sexually suggestive poses. Agents of the U.S. Naval Criminal Investigation Service, in conjunction with the FBI and the San Diego Police Department, responded by conducting a search of the McCoy home pursuant to a federal search warrant, and seizing numerous photographs, as well as the family still camera, video camera, and computer.²

In January 2001, the government filed an indictment charging both Jonathan and Rhonda with four counts of manufacturing child pornography by a parent using materials transported in interstate commerce, 18 U.S.C. § 2251(b). Rhonda was also charged with one count of manufacturing child pornography using materials transported in interstate commerce, 18 U.S.C. § 2251(a).³ Rhonda and Jonathan filed motions to dismiss the indictment, which the district court denied on May 10, 2001. Rhonda then entered plea negotiations with the government, while Jonathan elected to stand trial. He was eventually acquitted by a jury on all counts on June 13, 2001. With respect to Rhonda, the government filed a superseding information on May 15, 2001, charging her with one count of possessing child pornography, 18 U.S.C. § 2252(a)(4)(B). The statute provides in relevant part that:

(a) Any person who —

(4) ...

(B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if —

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.

(emphasis added). The government does not allege that the photograph of Rhonda and her child was mailed, shipped, or transported in interstate or foreign commerce, nor that Rhonda, hereinafter "McCoy," intended to sell or distribute the photograph in interstate commerce. Rather, federal jurisdiction was premised upon the place of manufacture of the camera and film used to take the pictures. Both were ordinary commercial products. Before McCoy pleaded guilty, it was stipulated 1) that the photograph in question was taken with a Cannon Sureshot 60 view camera and that Kodak film was used; 2) that Kodak film is manufactured in Rochester (New York), Australia, China, Mexico, England, France, Brazil, Indonesia, and India; and 3) that Cannon Sureshot 60 cameras are manufactured in Malaysia. Neither the type of film nor the model of camera is produced anywhere in California.

McCoy filed a motion to dismiss the superseding information on the ground that 18 U.S.C. § 2252(a)(4)(B), on its face and as applied, constitutes an unconstitutional exercise of Congress's Commerce Clause power.⁴ The district court denied the motion.⁵ On August 16, 2001, the district court accepted McCoy's conditional guilty plea and sentenced her to 30 months in prison and three years of supervised release.⁶

II. ANALYSIS

The question here is not whether McCoy's conduct in possessing the picture of herself and her ten-year-old daughter may provide the basis for subjecting her to criminal punishment by the state in which the conduct occurred.⁷ Rather, the only question before us is whether the federal government may punish McCoy for possessing the picture or, more specifically, whether § 2252(a)(4)(B) is unconstitutional under the Commerce Clause, on its face or as applied. We review questions involving the constitutionality of a statute de novo. United States v. Serang, 156 F.3d 910, 913 (9th Cir.1998); Nat'l Collegiate Athletic Ass'n v. Miller, 10 F.3d 633, 637 (9th Cir.1993).

A. Congressional Power Under the Commerce Clause

The Constitution delegates to Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. CONST. art. I, § 8, cl. 3. As "[c]omprehensive as the word `among' is, it may be very properly be restricted to that commerce which concerns more States than one.... The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a State." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824). At issue here is whether a statute enacted pursuant to the Commerce Clause may constitutionally reach non-commercial, non-economic individual conduct that is purely intrastate in nature, when there is no reasonable basis for concluding that the conduct had or was intended to have any significant interstate connection or any substantive effect on interstate commerce.

In reviewing a constitutional challenge to a statute based upon the Commerce Clause, we are guided by two recent decisions of the Supreme Court, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626, (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Lopez, the Supreme Court outlined three general categories of activity that may be regulated under the Commerce Clause, the third category encompassing intrastate activities that "substantially affect" interstate commerce. More important for our purposes, in Morrison, the Court established a four-part mode of inquiry to be used in determining whether an intrastate activity substantially affects commerce and thus falls within the third category. While Lopez and Morrison together represent a decisive shift in the Court's analysis of the limitations on Congress's power to enact legislation pursuant to the Commerce Clause,⁸ it is Morrison that is critical to the outcome here: for the question we must consider is whether the challenged portion of the statute regulates intrastate activity that has a substantial effect on interstate commerce, and our answer lies in our application of the four-part inquiry mandated by Morrison. First, however, we will describe briefly the two recent cases.

In Lopez, the Supreme Court struck down the Gun Free School Zones Act as an unconstitutional exercise of Commerce Clause power by Congress. The Act made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 514 U.S. at 551, 115 S.Ct. 1624 (1995) (quoting 18 U.S.C. § 922(q)(1)(A)(1988)). After reviewing the structure of its twentieth century Commerce Clause jurisprudence, the Court described three broad categories of activity that Congress may properly regulate under the Commerce Clause: "the channels of interstate...