U.S. v. Morales-De Jesus

• Decision Date: 09 June 2004
• Docket Number: No. 02-2695.,02-2695.
• Citation: 372 F.3d 6
• Parties: UNITED STATES of America, Appellee, v. Elvin Tomás MORALES-DE JESÚS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 6

372 F.3d 6

UNITED STATES of America, Appellee, v. Elvin Tomás MORALES-DE JESÚS, Defendant, Appellant.

No. 02-2695.

United States Court of Appeals, First Circuit.

Heard October 9, 2003.

Decided June 9, 2004.

Juan Matos-de-Juan, with whom Joseph C. Laws, Jr., Federal Public Defender, and Maria T. Arsuaga, Assistant Federal Public Defender, were on brief, for appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney, with whom H.S. Garcia, U.S. Attorney, and Sonia I. Torres-Pabón, Assistant U.S. Attorney, were on brief, for appellee.

Before LYNCH and LIPEZ, Circuit Judges, and OBERDORFER,^* Senior District Judge.

LIPEZ, Circuit Judge.

Elvin Tomás Morales-De Jesús ("Morales") was convicted by a jury of violating 18 U.S.C. § 2251(a) for using materials mailed, shipped, and transported in interstate or foreign commerce to produce a video recording of his sexually explicit encounters with a minor. On appeal, he argues that 18 U.S.C. § 2251(a), facially and as applied, is an unconstitutional exercise of Congress's Commerce Clause power, and that the evidence presented at trial was insufficient to sustain a conviction. Finding appellant's arguments unavailing, we affirm.

I.

For purposes of our analysis, we can avoid recounting most of the lurid details of this case. In short, Morales induced a thirteen-year-old girl, who was his god-daughter and a member of his church, to have sex with him in a motel on at least five separate occasions. During the final two encounters, Morales used materials and equipment that had moved in interstate commerce to videotape the pair's sex acts. After his wife discovered the tape in the backseat of his car and played it, she informed the girl's parents, who then contacted police. Morales was duly arrested, charged, and indicted for two counts of violating 18 U.S.C. § 2251(a), which provides in pertinent part that

[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct[] shall be punished as provided under subsection (d), ... if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means....

18 U.S.C. § 2251(a).

Morales's three-day jury trial produced a guilty verdict on both counts. After the defendant unsuccessfully moved for a judgment of acquittal, he was sentenced to 135 months of imprisonment and three years of supervised release on each count, to be served concurrently, and fined $1,000 with a special monetary assessment of $100. The district court ordered the federal sentence to be served concurrently with a 25-year state sentence based on charges filed for the same conduct at issue here. This appeal followed.

II.

A. Constitutional Claim

Morales appears to bring both facial and as-applied challenges to the constitutionality of § 2251(a). Relying on 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), Morales urges that § 2251(a) is unconstitutional because it attempts to regulate intrastate child pornography created exclusively for personal use which, Morales argues, does not affect interstate commerce. Morales further argues that even if the statute is facially constitutional, it is unconstitutional as applied to him because his activities were not commercial in nature and did not implicate interstate commerce. We review constitutional challenges de novo. United States v. Robinson, 137 F.3d 652, 653 (1st Cir.1998).

Section 2251(a) is part of a broad regulatory scheme that prohibits the production, receipt, transmission, and possession of child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. When this statute was originally enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 8 (1978)(codified at 18 U.S.C. §§ 2251 et seq.)("the Act"), it targeted production of child pornography only if the pornographic depiction itself was transported in interstate commerce, or if the defendant knew, or should have known, that the depiction would be transported in interstate commerce. In 1998, Congress amended the Act by adding the jurisdictional element we have before us today: only the materials used to produce the pornographic depictions must "have been mailed, shipped, or transported in interstate or foreign commerce by any means...." to subject a potential defendant to liability. 18 U.S.C. § 2251(a).

1. Lopez and Morrison

Morales argues that the "materials-in-commerce" Morales argues that the "materials-in-commerce" jurisdictional element in § 2251(a) is an unconstitutional exercise of Congress's Commerce Clause power¹ in light of 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 struck down the Gun-Free School Zones Act of 1990 (GFSZA), 18 U.S.C. § 922(q)(1)(A), which prohibited knowingly possessing a firearm within 1000 feet of a school. The Supreme Court enumerated three categories of activities that Congress may properly regulate pursuant to the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.

Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624 (citations omitted). Since the GFSZA regulated neither channels nor instrumentalities of interstate commerce, the Lopez Court analyzed the statute under the third category: activities that substantially affect interstate commerce. Id. at 559.

In finding the GFSZA constitutionally infirm, the Supreme Court held that because the statute "by its terms has nothing to do with `commerce' or any sort of economic enterprise," it could not be upheld under precedents that approved "regulations of activities that ... are connected with a commercial transaction that, when viewed in the aggregate, substantially affects interstate commerce." Id. at 561, 115 S.Ct. 1624. Second, the Court observed that the GFSZA lacked a jurisdictional element that would "ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. Finally, the Court stated that although congressional findings about the "legislative judgment that the activity in question substantially affected interstate commerce" were not required, such findings would have helped the Court evaluate the impact of the activity on interstate commerce "even though no such substantial effect was visible to the naked eye." Id. at 563, 115 S.Ct. 1624. Based on these considerations, the Court found the GFSZA to be unconstitutional. Id. at 567-68, 115 S.Ct. 1624.

The Supreme Court amplified Lopez's holding five years later in Morrison, when the court evaluated a federal civil remedy for victims of gender-based violence, as set forth in the Violence Against Women Act of 1994 ("VAWA"), 42 U.S.C. § 13981 ("A person ... who commits a crime of violence motivated by gender ... shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages...."). There, as in Lopez, the court was faced with another so-called category three regulation, pertaining to activities that allegedly have a substantial relation to interstate commerce. Morrison, 529 U.S. at 600, 120 S.Ct. 1740. Drawing on its reasoning in Lopez, the Morrison Court identified four factors to consider in determining whether a statute regulates an activity that has a substantial effect on interstate commerce: (1) whether the statute regulates economic or commercial activity; (2) whether the statute contains an "express jurisdictional element" that limits the reach of its provisions; (3) whether Congress made findings regarding the regulated activity's impact on interstate commerce; and (4) whether "the link between [the regulated activity] and a substantial effect on interstate commerce was attenuated." Id. at 610-12, 120 S.Ct. 1740.

In striking down the VAWA, the Court found that "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity," and that the statute lacked a jurisdictional element "establishing that the federal cause of action is in pursuance of Congress's power to regulate interstate commerce." Id. at 613, 120 S.Ct. 1740. Further, the Court held that while Congress had made explicit findings "regarding the serious impact that gender-motivated violence has on victims and their families, ... the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Id. at 614, 120 S.Ct. 1740. Finally, the Court found that a "causal chain from the initial occurrence of violent crime ... to every attenuated effect upon interstate commerce ... would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." Id. at 615, 120 S.Ct. 1740.

2. The Constitutionality of § 2251(a) on Its Face

Because § 2251(a) regulates neither channels nor instrumentalities of interstate commerce, we analyze the constitutionality of the statute as a category three regulation under Lopez. Accordingly, we must apply the four Morrison factors to determine whether the statute regulates an activity that "substantially affects" interstate commerce. To aid the clarity of our analysis, we take...