Interstate Commerce and “Producing” Child Pornography

As I’ve noted in prior posts, the requirement that criminal activity somehow involve the use of interstate or foreign commerce is the element that gives the federal government jurisdiction to criminalize, and prosecute, what would otherwise be a traditional state crime.

There are, as Wikipedia notes, specifically federal crimes, such as treason against the United States. (Article III § 3 of the U.S. Constitution makes treason against the United States a federal crime. I’ve always found it amazing that many U.S. state constitutions have similar provisions, and that a few people have been prosecuted for state treason. Thomas Dorr, for example, was convicted of treason against Rhode Island.)

I digress. My point is that over the last century or so Congress has used the Commerce Clause of the Constitution to expand federal criminal jurisdiction into areas that were once the exclusive province of the states. This post deals with a case in which the existence of the impact on interstate or foreign commerce necessary to establish federal criminal jurisdiction became an issue.

The case is U.S. v. Dickson, __ F.3d __, 2011 WL 240329 (U.S. Court of Appeals for the 5^th Circuit 2011), and this is all I know about how it arose:

Federal agents executed a search warrant at [Bryan] Dickson's residence and found a CD that contained videos and images of child pornography. Some of the pictures were of a one-year-old boy, A.B., which were the only pictures taken by Dickson himself.

U.S. v. Dickson, supra. Dickson was charged with and convicted of possessing child pornography in violation of 18 U.S. Code 2252(a) and producing child pornography in violation of 18 U.S. Code § 2251(a). U.S. v. Dickson, supra. Sounds like the conviction couldn’t have been much of a surprise:

After the government presented its case at a bench trial, Dickson unsuccessfully moved for judgment of acquittal on the ground that the government had failed to meet its burden as to each element of both counts. Dickson presented no evidence, and the court found him guilty.

U.S. v. Dickson, supra. After being sentenced, Dickson appealed the denial of his motion for judgment of acquittal and the denial of an earlier motion to dismiss Count 2 (the producing child pornography count) of the indictment. U.S. v. Dickson, supra. The Court of Appeals began its analysis of his arguments on both issues by noting that

[w]e review denials of motions for judgments of acquittal de novo. U.S. v. Izydore, 167 F.3d 213 (5^th Cir. 1999). We view the evidence in the light most favorable to the government `with all reasonable inferences to be made in support of the . . . verdict.’ U.S. v. Moser, 123 F.3d 813 (5<sup>th</sup> Cir. 1997). The evidence is sufficient if it `would permit a rational trier of fact to find [the defendant] guilty beyond a reasonable doubt.’ U.S. v. Pankhurst, 118 F.3d 345 (5^th Cir. 1997).

U.S. v. Dickson, supra.

The Court of Appeals then addressed Dickson’s appeal of his motion for judgment of acquittal. U.S. v. Dickson, supra. It explained that to convict someone for possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B),

the government must prove that the defendant possessed a visual depiction of a minor engaging in sexually explicit conduct that `has been mailed, or has been shipped or transported using any means or facility of 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.’

Both parties conceded that Dickson's images never traveled in interstate commerce. The issue, therefore, is whether the government presented sufficient evidence that the images were produced using materials that traveled in interstate commerce. The government argues that it met its burden by showing that the CD holding the images was made in the Republic of China.

U.S. v. Dickson, supra.

To resolve that issue, the Court of Appeals had to decide if “copying images to another device constitutes `production’”, an “issue of first impression” for the 5^th Circuit Court of Appeals. U.S. v. Dickson, supra. The 5^th Circuit court noted, though, that

[s]everal of our sister circuits, however, have reached the same conclusion: that images are “produced” for purposes of § 2252(a)(4)(B) when they are copied or downloaded onto hard drives, disks, or CDs. `When the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process ‘produces' an image.’ U.S. v. Guagliardo, 278 F.3d 868 (U.S. Court of Appeals for the 9^th Circuit 2002).

U.S. v. Dickson, supra (citing U.S. v. Caley, 355 Fed. Appx. 760 (U.S. Court of Appeals for the 4^th Circuit 2009); U.S. v. Schene, 543 F.3d 627 (U.S. Court of Appeals for the 10^th Circuit 2008); and U.S. v. Angle, 234 F.3d 326 (U.S. Court of Appeals for the 7^th Circuit 2000).

Dickson argued that he did not

use the CD to produce the images, but only to store them. He asserts that the statute contemplates the original act of producing the images, not their subsequent transfer onto a CD, which he characterizes as reproduction. Had Congress wanted to criminalize reproduction, he argues, it would have done so specifically, as it did in § 2252(a)(2) by criminalizing receiving, distributing, or reproducing child pornography.

Finally, Dickson asserts that, at the very least, the statute is ambiguous and thus should be construed in his favor under the rule of lenity.

U.S. v. Dickson, supra.

(As Wikipedia notes, the rule of lenity is a principle of statutory construction under which a court “construing an ambiguous criminal statute . . . should resolve the ambiguity in favor of the defendant.” Criminal defendants often invoke the rule of lenity, but seldom with any particular success. . . .)

The 5^th Circuit certainly wasn’t convinced:

Dickson's arguments are as unpersuasive to us as similar arguments were to the Fourth, Seventh, Ninth, and Tenth Circuits. First, `producing’ is broadly defined as `producing, directing, manufacturing, issuing, publishing, or advertising. 18 U.S. Code § 2256(3). Congress could have left `producing’ undefined, thereby giving it its ordinary meaning. But by defining `producing’ using the term itself plus other closely related terms, Congress intended the statute to cover a wider range of conduct than merely initial production. Excluding copying from our interpretation of `producing’ would be too restrictive a reading.

U.S. v. Dickson, supra.

The Court of Appeals also pointed out that

§ 2252(a)(2) uses `reproduce,’ rather than `produce’ as in § 2252(a)(3) and (4), because that subpart addresses receiving child pornography, unlike the other two subparts, which address selling and possessing child pornography, respectively.

One who sells or possesses images may also produce them and thus could continue to produce copies, but one who merely receives pornography could not have been the original producer and thus may only reproduce. Finally, the statute is not ambiguous, so the rule of lenity does not apply.

U.S. v. Dickson, supra.

The 5^th Circuit therefore held that “[b]ecause the government presented sufficient evidence that the CD was shipped from the Republic of China, a reasonable fact-finder could have found that Dickson produced the pornographic images using materials that traveled in interstate or foreign commerce. The conviction is affirmed.” U.S. v. Dickson, supra.

After reviewing, and rejecting, certain arguments Dickson made as to why his sentencing process was flawed, the Court of Appeals briefly addressed his appeal of the denial of his motion to dismiss Count 2 of the indictment. U.S. v. Dickson, supra. This is all the opinion says about that motion, and since I don’t have access to the appellate briefs, I can’t add anything to what the court said:

Dickson claims the district court erred in denying his motion to dismiss the indictment on count two (production) because the Commerce Clause does not give Congress the power to regulate the conduct underlying that charge. Dickson concedes that this argument is foreclosed by U.S. v. Kallestad, 236 F.3d 225 (5^th Cir. 2000), and he raises it solely to preserve it for further review. Therefore we affirm the denial of the motion to dismiss the indictment on count two.

U.S. v. Dickson, supra.

Kallestad argued that 18 U.S. Code § 2252(a)(4)(B) “which prohibits mere possession of child pornography, is beyond Congress's power under the Commerce Clause.” U.S. v. Kallestad, supra. In a relatively lengthy opinion, the 5^th Circuit rejected his argument, holding that § 2252(a)(4)(B) “is facially valid” and its application to Kallestad fell “within Congress’ power under the Commerce Clause.” U.S. v. Kallestad, supra.

[A]cting pursuant to its commerce power, Congress may reach intrastate possession in an effort it may rationally conclude is necessary to control this interstate market. It is not irrational for Congress to conclude that to regulate a national commercial market for a fungible good, it must as a practical matter be able to regulate the possession of that type of good-possession that in a real economic sense is never wholly `local.’ Local inventories become the source of trading and selling as familiarity dulls the utility of the pictures.

Congress could reach Filburn's wheat because the federal government legitimately sought to support the price of wheat on the interstate market. Congress had little concern for the few bushels of wheat in Wickard grown for home consumption. Its intent was to regulate the national market. That its goal was to support wheat prices is of no moment. Its means, by necessity, was control of supply. . . . For like reasons, Congress can reach Kallestad's pornography because it legitimately seeks to eliminate the interstate market for child pornography. And it is rational to conclude that reaching local possession is a necessary incident to that objective.

U.S. v. Kallestad, supra.

Why, you might ask, would Dickson raise this issue in a motion to dismiss and again on appeal when the 5^th Circuit had already rejected it? It appears that other federal courts of appeals have disagreed, at least to some extent, with the 5^th Circuit’s position in Kallestad . . . which inferentially suggests that Dickson wants to try to persuade the U.S. Supreme Court to take up this issue.