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No. 05-877

In the Supreme Court of the United States

VIRGILIO JERONIMO-BAUTISTA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
JEFFREY P. SINGDAHLSEN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether 18 U.S.C. 2251(a) is unconstitutional, as exceeding Congress's powers under the Commerce Clause, as applied to petitioner's alleged intrastate sexual exploitation of a child for the production of child pornography, where the materials used to produce that child pornography have moved in interstate or foreign commerce, but the pornographic images themselves have neither moved in nor been shown to have been intended for sale or distribution in interstate or foreign commerce.

In the Supreme Court of the United States

No. 05-877

VIRGILIO JERONIMO-BAUTISTA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 24-40) is reported at 425 F.3d 1266. The opinion of the district court (Pet. App. 41-62) is reported at 319 F. Supp. 2d 1272.

JURISDICTION

The judgment of the court of appeals was entered on October 12, 2005. The petition for a writ of certiorari was filed on January 6, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner was indicted in the United States District Court for the District of Utah on one count of inducing a minor "to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which visual depictions were produced using materials that had been * * * transported in interstate and for eign commerce," in violation of 18 U.S.C. 2251(a). 02/11/04 Indictment 1-2 (Count 1). Before trial, the dis trict court dismissed the indictment on the ground that Section 2251(a), as applied to petitioner, exceeded Con gress's authority under the Commerce Clause. See Pet. App. 25. The court of appeals reversed the district court's dismissal of the indictment and remanded the case for further proceedings. Id. at 24-40.

1. The government alleged in the district court that on January 29, 2004, petitioner and two other men en tered a vacant residence in Magna, Utah, accompanied by a 13-year-old girl. At some point during the evening, the girl became unconscious, apparently after ingesting an intoxicating substance. After the girl lost conscious ness, the men took off her clothes. They subsequently photographed the victim as she was being sexually as saulted by each of the men. The camera and film used to take the photographs were manufactured outside of Utah. Pet. App. 26, 45, 47.

One of the men took the film to a one-hour photo lab oratory for processing. In the course of developing the film, the laboratory staff noticed that some of the photo graphs depicted the sexual assault of a minor. The man ager called the police, and petitioner and the other two men were subsequently arrested. Pet. App. 26.

2. On February 11, 2004, a federal grand jury re turned an indictment charging petitioner and the other two men with inducing a minor "to engage in sexually explicit conduct for the purpose of producing visual de pictions of such conduct, which visual depictions were produced using materials that had been * * * trans ported in interstate and foreign commerce," in violation of 18 U.S.C. 2251(a). 02/11/04 Indictment 1-2 (Count 1). The government alleged that the camera and film had traveled in interstate or foreign commerce. Pet. App. 47. The government did not contend that the defendants or the victim had crossed state lines in connection with the offense. Nor did the government contend that the sexually explicit photographs of the victim were, or were intended to be, sold or distributed through interstate or foreign commerce. Id. at 26, 45, 47.

Before trial, petitioner moved to dismiss the indict ment, arguing that Congress lacks the authority under the Commerce Clause to prohibit the conduct with which he is charged. Pet. App. 25. The district court granted the motion, holding that Section 2251(a) is unconstitu tional as applied to petitioner's alleged offense. Id. at 41-62. The court concluded that the intrastate produc tion of child pornography for personal consumption is not economic activity, id. at 54-55; that Section 2251(a)'s jurisdictional element fails to ensure that the proscribed conduct bore a constitutionally sufficient nexus to inter state commerce, id. at 55-56; that Congress's findings about the sizeable interstate market in child pornogra phy did not justify application of the statute to peti tioner's own conduct, id. at 56-57; and that the link be tween petitioner's conduct and interstate commerce was too tenuous to support the exercise of Commerce Clause authority, id. at 57-60.

3. During the pendency of the government's appeal from the dismissal of petitioner's indictment, this Court issued its decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005). The Court in Raich considered and rejected the plaintiffs' claim that the Controlled Substances Act (CSA), 21U.S.C. 801 et seq., "as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause." 125 S. Ct. at 2205. The Court explained that "Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commod ity." Id. at 2206. The Court concluded 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" applicable federal scheme. Id. at 2209.

4. The court of appeals reversed the dismissal of peti tioner's indictment and remanded the case for further proceedings. Pet. App. 24-40. The court noted that this Court in Raich had "rejected an as applied challenge to the [CSA]" and had "held that Congress could regulate the purely local production, possession, and use of mari juana for personal medical purposes." Id. at 30. The Raich Court's analysis, the court explained, is equally applicable to the local production of child pornography for personal consumption. Id. at 33-40. Like the CSA, the federal child-pornography statutes "regulate the 'production, distribution, and consumption of commodi ties for which there is an established, and lucrative, in terstate market.' Congress' prohibition against the in trastate possession or manufacture of child pornography 'is a rational (and commonly utilized) means of regulat ing commerce in that product.'" Id. at 34 (quoting Raich, 125 S. Ct. at 2211). The court of appeals further observed that "Congress' explicit findings regarding the extensive national market in child pornography and the need to diminish that national market support the con tention that prohibiting the production of child pornog raphy at the local level helps to further the Congressio nal goal." Id. at 33 (citation and internal quotation marks omitted).

ARGUMENT

Petitioner's as-applied constitutional challenge to 18 U.S.C. 2251(a) (Pet. 8-22) lacks merit and does not war rant this Court's review. Petitioner principally contends that the court of appeals' ruling in this case conflicts with the decisions in United States v. Corp, 236 F.3d 325 (6th Cir. 2001), and United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003). This Court has repeatedly denied petitions for writs of certiorari in which decisions of var ious courts of appeals were alleged to conflict with Corp and McCoy. See, e.g., Riccardi v. United States, 126 S. Ct. 299 (2005); Sharpley v. United States, 126 S. Ct. 78 (2005); Colburn v. United States, 125 S. Ct. 2934 (2005); Morales-De Jesus v. United States, 125 S. Ct. 2929 (2005); Blackwell v. United States, 541 U.S. 905 (2004). There is no reason for a different result here.

1. The court of appeals did not purport to decide whether petitioner is guilty of the charged offense, but simply reversed the district court's dismissal of peti tioner's indictment and remanded the case for further proceedings. See Pet. App. 39. The interlocutory pos ture of the case "alone furnishe[s] sufficient ground for the denial" of the petition. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); accord Broth erhood of Locomotive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam); Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (opinion of Scalia, J., respecting the denial of the peti tion for writ of certiorari). If petitioner is acquitted fol lowing a trial on the merits, his constitutional claim will become moot. If he is convicted, he will be entitled to reassert his current challenge to the application of 18 U.S.C. 2251(a), in addition to any other claims he may have at that time.

2. As the court of appeals correctly held, this Court's analysis of the CSA in Raich is equally applicable to Con gress's regulation of child pornography. See Pet. App. 34-39; United States v. Forrest, 429 F.3d 73, 78-79 (4th Cir. 2005). Like the prohibition on intrastate possession of marijuana that was upheld in Raich, 18 U.S.C. 2251(a) is part of "comprehensive legislation to regulate the in terstate market in a fungible commodity." 125 S. Ct. at 2209. Congress could rationally conclude that failure to regulate local production of child pornography would undercut its effort to eliminate that national market. See Pet. App. 39; Forrest, 429 F.3d at 78-79. As with the CSA, moreover, Congress's approach to the regulation of child pornography is supported by the potential diffi culty of proving that particular images have previously traveled across state lines or are intended for sale or distribution in interstate or foreign commerce. See, e.g., United States v. Kallestad, 236 F.3d 225, 230 (5th Cir. 2000) ("[B]ecause it may often be impossible to deter mine whether a specific piece of child pornography has moved in interstate commerce[,] * * * Congress could rationally determine that banning purely local posses sion was a necessary adjunct to its effort to ban inter state traffic."); United States v. Harris, 358 F.3d 221, 222 (2d Cir. 2004) (explaining that regulation of intra state possession is supported by the fact that "much of the child pornography that concerned Congress is home grown, untraceable, and enters the national market sur reptitiously") (quoting United States v. Holston, 343 F.3d 83, 89 (2d Cir. 2003)).

3. Contrary to petitioner's contention (Pet. 8-19), the court of appeals' decision in this case does not conflict with the decisions in Corp and McCoy.1

a. In Corp, the Sixth Circuit held that 18 U.S.C. 2252(a)(4)(B), which prohibits the intrastate possession of child pornography, was unconstitutional as applied to the "unusual facts" of the defendant's case. 236 F.3d at 332-333; see United States v. Andrews, 383 F.3d 374, 377 (6th Cir. 2004) (noting that the court of appeals in Corp "emphasized that [the] facts were unique"), cert. denied, 125 S. Ct. 1693 (2005). The 23-year-old defendant in Corp was convicted of possessing sexually explicit photo graphs of his 17-year-old girlfriend. 236 F.3d at 326. The court of appeals found that Corp's girlfriend "was not an 'exploited child' nor a victim in any real and prac tical sense." Id. at 332. Rather, the court stated, she "was merely months away from reaching majority," id. at 333, and she had "voluntarily posed for the photo graphs and [did] not want Defendant prosecuted,'" id. at 326 (citation omitted). Those factors, the Sixth Cir cuit concluded, distinguished Corp's conduct from "the much more threatening situation where an adult was taking advantage of a much younger child or using the imagery for abusive or semi-commercial purposes." Id. at 332.

This case, by contrast, involves allegations of assaultive and coercive conduct directed against a 13-year-old girl-the type of conduct that the court in Corp stressed was not before it. The Sixth Circuit has declined to extend Corp to cases involving offenders who coerced and sexually exploited young minors. See An drews, 383 F.3d at 377-378; see also United States v. Gann, No. 04-5840, 2005 WL 3528917, at *3-*5 (6th Cir. Dec. 21, 2005) (unpublished).

b. The facts in McCoy also differ substantially from the circumstances of petitioner's alleged offense. Mc Coy involved a single photograph of the defendant and her daughter, partially unclothed, posed side-by-side with their genital areas exposed. 323 F.3d at 1115, 1122, 1132. The court of appeals stressed that the visual de piction on which the prosecution was based was a "fam ily photo (pornographic as it may have been)," id. at 1122, and the court attributed the incident to the defen dant's consumption of large quantities of alcohol, id. at 1115. The court of appeals expressly limited its consti tutional holding to "McCoy's circumstances and those of others similarly situated." Id. at 1131. In subsequent decisions, the Ninth Circuit has declined to extend its holding in McCoy and has rejected other defendants' Commerce Clause attacks on the federal child-pornogra phy laws. See United States v. Adams, 343 F.3d 1024, 1027 (9th Cir. 2003), cert. denied, 542 U.S. 921 (2004); United States v. Tashbook, 144 F. App'x 610 (9th Cir. 2005), cert. denied, 126 S. Ct. 777 (2005). As with Corp, the facts of McCoy are far removed from the predatory behavior alleged in this case.

c. The offense of conviction in Corp and McCoy was possession of child pornography, in violation of 18 U.S.C. 2252(a)(4)(B). Petitioner, by contrast, was indicted for inducing a minor to engage in sexually explicit conduct for the purpose of producing child pornography, in viola tion of 18 U.S.C. 2251(a). Although both provisions are part of a comprehensive congressional effort to attack the "extensive national market in child pornography," Holston, 343 F.3d at 89, the "produced using materials" jurisdictional element has a more direct and immediate link to the offense conduct in cases where the defendant himself has used materials that moved in interstate com merce to produce the child pornography.

d. Both Corp and McCoy predate this Court's deci sion in Raich, on which the court of appeals in this case heavily relied, and Raich calls into serious doubt the continuing validity of those decisions. If future cases in which Corp and McCoy would otherwise be controlling arise within the Sixth and Ninth Circuits, those courts of appeals may reconsider their precedents in light of the intervening decision in Raich. See Tashbook, 144 F. App'x at 613 & n.2 (noting the potential tension between McCoy and Raich, but declining to determine McCoy's continuing precedential force because the case before the court was distinguishable on its facts); Gann, 2005 WL 3528917, at *5-*6 (distinguishing Corp on its facts while rejecting, as inconsistent with Raich, the conten tion that application of Section 2251(a) is unconstitu tional absent proof of an intent to sell, trade, or distrib ute the child pornography produced by the defendant). The substantial uncertainty about whether Corp and McCoy remain good law within the circuits that issued those decisions provides an additional reason for this Court to deny review here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
JEFFREY P. SINGDAHLSEN
Attorney

MARCH 2006

1 The court of appeals' decision in this case is consistent with the great weight of appellate authority upholding the constitutionality of federal child-pornography statutes. See, e.g., United States v. Morales- De Jesus, 372 F.3d 6, 10-21 (1st Cir. 2004), cert. denied, 125 S. Ct. 2929 (2005); United States v. Hampton, 260 F.3d 832, 834-835 (8th Cir. 2001), cert. denied, 535 U.S. 1058 (2002); Harris, 358 F.3d at 222-223; Kallestad, 236 F.3d at 228-231; United States v. Angle, 234 F.3d 326, 337-338 (7th Cir. 2000), cert. denied, 533 U.S. 932 (2001); United States v. Rodia, 194 F.3d 465, 474-482 (3d Cir. 1999), cert. denied, 529 U.S. 1131 (2000). Although the Eleventh Circuit issued three decisions holding provisions of the child-pornography statutes unconstitutional as applied to intrastate conduct, each of those decisions has been vacated and remanded by this Court for further consideration in light of Raich. See United States v. Matthews, 143 F. App'x 298 (11th Cir.) (Table), vacated and remanded, 126 S. Ct. 826 (2005); United States v. Maxwell, 386 F.3d 1042 (2004), vacated and remanded, 126 S. Ct. 321 (2005); United States v. Smith, 402 F.3d 1303, vacated and remanded, 125 S. Ct. 2938 (2005).