U.S. v. Zimmerman

• Decision Date: 20 December 2007
• Docket Number: Criminal No. B-07-232.
• Citation: 529 F.Supp.2d 778
• Parties: UNITED STATES of America v. John Craig ZIMMERMAN.
• Court: U.S. District Court — Southern District of Texas

529 F.Supp.2d 778

UNITED STATES of America v. John Craig ZIMMERMAN.

Criminal No. B-07-232.

United States District Court, S.D. Texas, Brownsville Division.

December 20, 2007.

Jose Raul Hernandez, Brownsville, TX, John T. Blaylock, Attorney at Law, Brownsville, TX, for John Craig Zimmer. man.

Terra L. Bay, US Atty's Office, Brownsville, TX, for United States of America.

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

The United States indicted John Craig Zimmerman ("Zimmerman" or "Defendant") on four counts for violations of the Child Pornography Prevention Act ("CPPA"): two counts for sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) (2000);¹ one count for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) (2003);² and another count for possession of child pornography in violation of 18 U.S.C. § 2252(a) (4)(B) (2000).³ After Defendant waived his right to a jury trial, this case was tried to the Court on September 24, 2007. Defendant stipulated to every element of each offense except the element of jurisdiction⁴ Defendant's jurisdictional challenge is twofold. First, Defendant asserts that Congress does not have the power, pursuant to the Commerce Clause, to regulate, what he contends, was his purely intrastate activity. Second, Defendant contends that the government could not prove the jurisdictional elements of each of these statutes. The Court heard evidence at a bench trial,⁵ and, for the reasons that follow, overrules both challenges.

I. FACTUAL BACKGROUND

Defendant Zimmerman was a fire inspector for the Brownsville Fire Department. Pursuant to an anonymous, but specific, voice message left on the fire department's telephone, the City of Brownsville Management Information System searched Defendant's computer for child pornography on February 6, 2007. The search revealed pornography, both adult and what the investigators suspected to be child pornography, on the city-owned external hard drive of the computer that Defendant used at the fire department. The images found on this external hard drive were encrypted, such that special software, which was installed on Defendant's computer, had to be used to decode and view the images. The Brownsville Police Department.("BPD") was notified of the situation and was given consent to conduct its own search of the computer and external database. The police, after a thorough search of the external hard drive, discovered multiple images of child pornography, as well as a receipt for a subscription to a website containing child pornography that, according to one witness, was based outside of Texas. (Trial Tr., Direct Exam. Juan Avalos.)⁶

The BPD then obtained a search warrant for Zimmerman's residence. The search of the residence resulted in the seizure of a number of compact disks ("CDs"). Subsequent to the search of Defendant's home, the police telephoned Defendant regarding the location of a laptop that they believed he possessed. (Id.) Zimmerman indicated that the laptop was broken and was probably in a landfill somewhere. (Id.) Police also asked Defendant about two computer towers found in his home from which the hard drives had been removed. (Id.) Defendant stated that those computers had not worked in years, but, according to an Immigration and Customs Enforcement forensics agent, there was evidence that the computers had functioned much more recently. (Id.) Neither the laptop nor the missing hard drives were ever found by law enforcement. Nevertheless, the search of Defendant's home uncovered hundreds of images of child pornography, many of which were downloaded from the Internet. (Id.) The Court was presented with two of these images that had the name of the website from which they originated embedded into the image. (See Exhibits 23A, 24A.)

Also on these CDs, law enforcement found receipts for subscriptions to various websites specializing in child pornography. (Id.) These receipts were sent to Defendant's email address with Zimmerman's name on them, and they confirmed subscriptions to child pornography websites based in various states.

The police also discovered seventeen videos on the CDs found at Zimmerman's home. (Id.) These videos were noncommercial grade child pornography, and at least one of the videos contained an underage female speaking a language other than English or Spanish that one witness believed to be Russian. (Id.) In addition to these videos, there were other videos containing child pornography which were commercially made, and at least one of these also contained a female speaking in an unknown foreign language. (Id.)

Finally, the search of Defendant's home revealed numerous images of child pornography that Zimmerman created. Particularly, there was one CD labeled "Belize" that contained multiple pictures of underage females in various states of undress with a landscape that allegedly came from Belize in the background. (See, e.g., id.) Two victims from these photos testified at trial, and one stated that she had never been to Belize with Defendant, while the other was not asked whether she had ever visited Belize. (Trial Tr., Direct and Cross Exam. of KF and Summer Evans.) Based on the evidence, it appears that the image from Belize was placed in the background of the images after Defendant took the nude photos of at least one of the victims. (See Trial Tr. Direct Exam. Juan Avalos.)

II. CONGRESS HAD THE AUTHORITY TO REGULATE THIS CONDUCT

In Kallestad, the Fifth Circuit held that Section 2252(a)(4) (B), which prohibits possession of child pornography, does not reach beyond Congress's power under the Commerce Clause, even when used to reach purely intrastate possession. United States v. Kallestad, 236 F.3d 225, 231 (5th Cir.2000). In that case, the defendant took pictures of underage girls engaged in sexually explicit conduct. Id. at 227. The photos and films were made at his home in Texas; however, the government proved that the actual film used to create the images was, manufactured outside of Texas. Id. The defendant argued that it was outside of Congress's Commerce Clause power to regulate his purely intrastate possession of this child pornography. Id. The Fifth Circuit followed the reasoning in Lopez and Morrison to determine that the statute was constitutional, even when used to reach intrastate activity. Id. at 227-31; see generally United States v. Lopez, 514 U.S. 549, 115 S.Ct: 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

In Lopez, the Supreme Court discussed three categories of activities that Congress may regulate pursuant to its power under the Commerce Clause: (1) channels of interstate commerce; (2) persons or things traveling in interstate commerce; and (3) Activities having a substantial effect on interstate commerce. 514 U.S. at 558-59, 115 S.Ct. 1624. In Morrison, the court expanded on the third category—activities having a substantial effect on interstate commerce. See generally 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658. When analyzing this last category, Morrison instructs courts to inquire: (1) whether the statute regulates commercial or "economic" activity; (2) whether the statute contains an express jurisdictional element that might limit its reach; (3) whether the legislative history contains congressional findings regarding the effects that the regulated activity has upon interstate commerce; and (4) whether the link between the regulated activity and interstate commerce is too attenuated to be considered a regulation of interstate commerce. Id. at 610-12, 120 S.Ct. 1740.

The Fifth Circuit in Kallestad found that the home production of child pornography was economic in character. See United States v. Kallestad, 236 F.3d 225, 228 (5th Cir.2000). After describing the market for child pornography, the court stated that "when a person produces for their own consumption, a product that is traded in an interstate market, his conduct is economic in character." Id. The court then discussed the second Morrison factor and determined that Section 2252(a)(4)(B) also contains a jurisdictional nexus. Id. at 228-29. This provision makes it a crime to possess child pornography 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." Id. at 229; see also 18 U.S.C. § 2252(a)(4)(B). The Kallestad court next turned to the third Morrison factor and discussed the congressional findings. The court found that there were ample congressional findings showing that child pornography is a growing, predatory business which operates across the United States to reach consumers nationwide. Id. Lastly, the Fifth Circuit considered the criminalized act's relationship to interstate commerce, i.e., whether "Congress could rationally have determined that it must reach local, intrastate conduct in order to effectively regulate a national, interstate market." Id. The Fifth Circuit concluded that it was rational for Congress to have determined that reaching local possession of child pornography was necessary to its objective of eliminating this illegal, interstate market. Id. at 231.

Subsequent to the Fifth Circuit's opinion in Kallestad, the Supreme Court decided Gonzales v. Raich, in which the Court again revisited the third category of activities that Congress can regulate via the Commerce Clause. 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). In Raich, the Supreme Court was faced with the question of whether Congress had the authority, pursuant to the Commerce Clause and the Necessary and Proper Clause, to prohibit purely intrastate cultivation and use of marijuana through various provisions of the Controlled Substances Act (CSA). See generally id. The Court, quoting Wickard v. Filburn, stated that "even if [defendant's] activities be local and though it may not be regarded as...