U.S. v. Sullivan, 05-3161.

• Citation: 451 F.3d 884
• Decision Date: 27 June 2006
• Docket Number: No. 05-3161.,05-3161.
• Parties: UNITED STATES of America, Appellee v. Roger James SULLIVAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

451 F.3d 884

UNITED STATES of America, Appellee v. Roger James SULLIVAN, Appellant.

No. 05-3161.

United States Court of Appeals, District of Columbia Circuit.

Argued May 5, 2006.

Decided June 27, 2006.

Appeal from the United States District Court for the District of Columbia (No. 04cr00082-01).

Laina C. Wilk argued the cause for appellant. With her on the briefs was Thomas G. Corcoran, Jr. Herbert A. Dubin entered an appearance.

Suzanne C. Nyland, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and Barbara E. Kittay, Assistant U.S. Attorneys.

Before: SENTELLE and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge SENTELLE.

EDWARDS, Senior Circuit Judge.

Appellant Roger James Sullivan pled guilty to one count of knowingly possessing child pornography images that were transported in interstate commerce via the Internet, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2000). Appellant moved to have his indictment dismissed by the District Court, arguing that Congress lacked the power to proscribe purely intrastate possession of pornography, regardless of whether the pornography had traversed interstate over the Internet. The District Court denied Sullivan's motion, holding that Congress acted within its authority under Article I, § 8 of the Constitution when it criminalized certain activities relating to material constituting or containing child pornography.

On appeal, Sullivan renews his constitutional claim. We agree with the District Court that his argument fails. The Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), which was decided after the District Court's ruling, directly controls the disposition of this case. We also reject appellant's objections to the conditions of his supervised release imposed by the District Court.

I. BACKGROUND

Section 2252A(a)(5)(B) prohibits:

knowingly possess[ing] 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.

18 U.S.C. § 2252A(a)(5)(B) (2000). On February 19, 2004, appellant was indicted on one count of possession often or more items of child pornography that had been transported in interstate or foreign commerce by computer, in violation of § 2252A(a)(5)(B). In November 2004, Sullivan executed a plea agreement, which included a proffer of facts supporting a guilty plea on the § 2252A(a)(5)(B) charge; he then entered a conditional plea of guilty, preserving for appeal the issue of whether § 2252A(a)(5)(B), as applied to him, exceeded Congress' authority under the Commerce Clause.

The proffer of facts supporting the plea agreement is straightforward. In 2002, appellant was working for FOX News Productions in Washington, D.C. FOX is a broadcast and cable news network that produces and distributes news and information programs throughout the United States. In March 2002, the FBI received a telephone call from an employee at FOX, reporting that approximately 75,000 files of pornography had been found on the computer at appellant's workplace. The FBI retrieved the hard drive and "zip disks" from appellant's computer and found thousands of images of child pornography that had been downloaded from various Internet sites, through Usenet, located in Atlanta, Georgia, via the FOX News Internet provider, MCI UUNet, whose server is located in Herndon, Virginia. The National Center for Missing and Exploited Children analyzed the pornography and determined that many of the images were downloaded from Eastern European and Russian Internet sites. An officer from the United States Navy Center for Child Protection would have testified that, in her expert opinion, at least 24 of the images given to her for examination contained enough detail and content to determine that they depicted children who were under 18 years of age and four images depicted children who were prepubescent. An expert in Forensic Audio, Video and Image Analysis from the FBI Laboratory would have testified that these images were taken from photographs of real children and were not artificially created.

Appellant admitted that he personally downloaded the images of child pornography from the Internet. He admitted that he knew it was illegal to download the imagines of child pornography from the Internet. He acknowledged that he had exclusive access to his computer, so no one else was involved in downloading the pornography to his computer. He also admitted that he had copied the contents of his hard drive to a substitute hard drive and that he had acquired the zip disks in order to move personal data, including the images of child pornography, from the hard drive of his workplace computer.

On December 8, 2004, Sullivan moved to dismiss the indictment on the ground that 18 U.S.C. § 2252A(a)(5)(B), as it applied to him, exceeded Congress' authority under the Commerce Clause. On December 22, the District Court convened a motions hearing and both parties offered arguments addressing the Eleventh Circuit's decision in United States v. Maxwell, 386 F.3d 1042 (11th Cir.2004) ("Maxwell I"), which had held that Congress could not regulate intrastate possession of child pornography. Maxwell I was vacated and remanded by the Supreme Court in light of Gonzales v. Raich, see United States v. Maxwell, ___ U.S. ___, 126 S.Ct. 321, 163 L.Ed.2d 29 (2005) (mem), and subsequently overturned by the Eleventh Circuit, see United States v. Maxwell, 446 F.3d 1210 (11th Cir.2006) ("Maxwell II").

Without the benefit of either Raich or Maxwell II, the District Court denied appellant's motion to dismiss the indictment. The court ruled that § 2252A(a)(5)(B) was constitutional as applied to Sullivan, because the images of child pornography were "instrumentalities" or "things" in interstate commerce and passed over the Internet, a "channel" of interstate commerce, or, alternatively, because the conduct at issue — possession of child pornography — has a substantial relation to interstate commerce. In the trial court's view, Congress acted within its authority when it sought to limit the supply and demand for child pornography by targeting all participants in the illicit market:

Congress intended to reach people who create this kind of material, and also people who are seeking it through whatever means, including through the Internet. People like Mr. Sullivan fuel the market for it.

Motions Tr. at 30.

Subsequently, on September 16, 2005, the District Court conducted a hearing to address issues related to appellant's sentence. After securing the parties' agreement that the Presentence Report ("PSR") contained no factual errors, the court went on to hear arguments regarding the proper sentence. The court explained that it would apply the 2002 Sentencing Guidelines, not the version currently in force, in order to give appellant the benefit of a lower base offense level. See United States v. Bolla, 346 F.3d 1148, 1151 n. 1 (D.C.Cir.2003) (discussing U.S.S.G. §§ 1B1.11(a) & 1B1.11(b)(1)). The parties presented arguments related mainly to Sullivan's psychological condition and the method of applying the Guidelines in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The District Court then sentenced appellant to 30 months' imprisonment, to be followed by two years of supervised release. Three of the conditions of supervised release are at issue in this appeal:

(1) The defendant shall not possess or use a computer that has access to any "on-line computer service" at any location, including his place of employment, without the prior written approval of the Probation Office. "On-line computer service" includes, but is not limited to, any Internet service provider, bulletin board system, or any other public or private computer network.

. . . . .

(2) Without the approval of a legal guardian, the defendant shall have no direct, or indirect, contact with children, age 18 or younger, and shall refrain from loitering in any place where children congregate, including but not limited to residences, arcades, parks, playgrounds, and schools. He shall not reside with a child or children under the age of 18 without the expressed and written approval of the minor's legal guardian and the written permission of the Court.

(3) The defendant shall not possess any pornographic, sexually oriented, or sexually stimulating materials, including visual, auditory, telephonic, or electronic media, and/or computer programs or services that relevant [sic] to the offender's deviant behavior pattern. He shall not patronize any place where pornography or erotica can be accessed, obtained, or viewed, including establishment [sic] where sexual entertainment is available.

Judgment in a Criminal Case, United States v. Sullivan, CR 04-82 (D.D.C.2005), at 3-4 (numbering added).

Appellant now renews his challenge to the indictment, maintaining that, as applied to him, § 2252A(a)(5)(B) represents an unconstitutional exercise of congressional power. He also challenges certain of the conditions of supervised release imposed by the District Court.

II. ANALYSIS

A. The Constitutionality of Sullivan's Indictment

Appellant makes the following argument in support of his appeal:

Title 18 U.S.C. § 2252A(a)(5)(B) is unconstitutional as applied to Sullivan because the statute exceeds Congress' authority pursuant to the Commerce Clause. In [United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)], ...