United States v. McCalla ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50162
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00384-DSF-1
GEOFFREY DAVID MCCALLA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted July 15, 2008*
Pasadena, California
Filed September 24, 2008
Before: Barry G. Silverman, Johnnie B. Rawlinson, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Rawlinson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
13587
UNITED STATES v. MCCALLA 13589
COUNSEL
Shannon M. Dorvall, Santa Monica, California, on behalf of
defendant-appellant Geoffrey David McCalla.
Thomas P. O’Brien, Christine C. Ewell, Rupa S. Goswami,
Los Angeles, California, on behalf of plaintiff-appellee
United States of America.
13590 UNITED STATES v. MCCALLA
OPINION
RAWLINSON, Circuit Judge:
Appellant Geoffrey David McCalla (McCalla) was charged
in a two-count indictment with producing and possessing
child pornography in violation of federal statutes. McCalla
filed two motions to dismiss the indictment for lack of juris-
diction and the district court denied both. McCalla pled guilty
to Count One charging production of child pornography, con-
ditioned only upon his ability to appeal the denial by the dis-
trict court of his motion to dismiss under the Commerce
Clause. On appeal, McCalla argues lack of federal jurisdiction
under the Commerce Clause and lack of federal territorial
jurisdiction under 18 U.S.C. § 7. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the district court’s rulings on
both motions to dismiss.
I. BACKGROUND
In December, 2005, John B. Kuzma (Kuzma), Special
Agent with the Department of Homeland Security (DHS),
United States Immigration and Customs Enforcement (ICE),
began investigating McCalla’s possible use of a child pornog-
raphy website. In the course of his investigation, Kuzma
learned that McCalla had been arrested by the Los Angeles
Police Department (LAPD) after a witness reported discover-
ing images in McCalla’s house depicting child pornography.
The images showed the witness’s step-daughter (Child Vic-
tim 1), who appeared to be approximately five years old, as
well as other children, engaging in sexually explicit conduct.
In addition to these images, numerous other images depicting
child pornography were retrieved from materials seized dur-
ing a search of McCalla’s residence and place of employment.
Approximately 4,235 suspected child pornography images
were recovered from standard file directories in McCalla’s
UNITED STATES v. MCCALLA 13591
work computer’s hard drive. Approximately 50 suspected
child pornography movie files were also recovered.
Following his arrest and the discovery of these images, a
federal grand jury returned a two-count indictment against
McCalla. Count One charged McCalla with the production of
child pornography in violation of 18 U.S.C. § 2251(a), (e).
Count Two charged McCalla with possessing child pornogra-
phy in violation of 18 U.S.C. § 2252A(a)(5)(B). Id. at 13.
Both counts included the jurisdictional requirement that the
child pornography produced or possessed by McCalla was
“produced using materials that had been mailed, shipped, and
transported in interstate and foreign commerce by any means,
including by computer . . . ”
McCalla filed two motions to dismiss the indictment. In the
first motion, McCalla argued lack of subject matter jurisdic-
tion, specifically contending that the Commerce Clause did
not grant Congress authority to regulate local production of
child pornography. The district court rejected this argument,
noting that in light of the Supreme Court’s decision in Gon-
zales v. Raich, 545 U.S. 1, (2005), regardless of prior Ninth
Circuit rulings, “the Ninth Circuit would now take the posi-
tion that this statute was valid.”
McCalla filed a subsequent motion to dismiss, arguing the
absence of federal territorial jurisdiction because the events
did not occur within the exclusive territory of the United
States. The district court also denied this second motion.
Thereafter, McCalla entered into a conditional plea agree-
ment with the government whereby he pled guilty to Count 1
of the indictment (production of child pornography). The plea
agreement was conditioned upon McCalla’s reservation of the
right to seek appellate review of the district court’s denial of
the motion to dismiss “filed on or about August 11, 2006 [the
Commerce Clause argument].”
13592 UNITED STATES v. MCCALLA
In the plea agreement, the parties stipulated to several facts,
including:
• Beginning in or around January, 2003, and con-
tinuing to in or about September, 2004, McCalla
took approximately 45 sexually explicit photo-
graphs of Child Victim 1.
• McCalla produced the pornographic images of
this child using materials that had been mailed,
shipped, or transported in interstate or foreign
commerce. In particular, McCalla used a Sony
digital camera that had been manufactured in
Japan and transported in interstate and foreign
commerce to California.
• Two compact discs containing child pornography
that McCalla kept and used at home contained
child pornographic images of Child Victim 1.
• Three compact discs containing child pornogra-
phy that McCalla kept and used at work con-
tained child pornographic images of Child Victim
1.
The district court accepted the guilty plea, and sentenced
McCalla to 210 months’ imprisonment followed by a lifetime
of supervised release. McCalla timely appealed.
II. STANDARD OF REVIEW
“We review a district court’s denial of a motion to dismiss
an indictment on constitutional grounds de novo.” United
States v. Latu, 479 F.3d 1153, 1155 (9th Cir. 2007) (citation
omitted).
UNITED STATES v. MCCALLA 13593
III. DISCUSSION
A. Commerce Clause Challenge
McCalla argues that Congress lacks authority under the
Commerce Clause to regulate the noncommercial and wholly
intrastate production of child pornography, and therefore, as
applied to him, 18 U.S.C. § 2251(a) is unconstitutional.
McCalla makes two main arguments in support of his
claim. First, McCalla argues that the Supreme Court’s most
recent decision discussing the Commerce Clause, Gonzales v.
Raich, 545 U.S. 1 (2005), was wrongly decided and applies
an incorrect legal standard of review. Second, McCalla argues
that analyzing Section 2251(a) utilizing the factors articulated
by the Supreme Court in United States v. Morrison, 529 U.S.
598 (2000), reveals the statute’s unconstitutionality.
To the extent McCalla premises his argument on an invita-
tion to set aside or disregard United States Supreme Court
precedent, we simply cannot accommodate him. As the
Supreme Court has expressly stated, “it is this Court’s prerog-
ative alone to overrule one of its precedents.” State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997). Accordingly, in determining
whether prosecution of the intrastate production of child por-
nography is authorized under the Commerce Clause, we are
bound by the Supreme Court’s decision in Raich.
Raich addressed the question of whether the Controlled
Substances Act (CSA) was unconstitutional as applied to
purely intrastate producers of marijuana for medical purposes
under California’s Compassionate Use Act. 545 U.S. at 5. The
Supreme Court reiterated that there are three general catego-
ries of activity that Congress’s commerce power gives it the
authority to regulate. “First, Congress can regulate the chan-
nels of interstate commerce. Second, Congress has authority
to regulate and protect the instrumentalities of interstate com-
merce, and persons or things in interstate commerce. Third,
13594 UNITED STATES v. MCCALLA
Congress has the power to regulate activities that substantially
affect interstate commerce.” Id. at 16-17 (citations omitted).
It is this third category that was implicated in Raich, see id.
at 17, and which also is at issue in this case.
[1] The Supreme Court ultimately held that the application
of CSA provisions criminalizing the intrastate manufacture,
distribution or possession of marijuana did not violate the
Commerce Clause. Id. at 9. In reaching this holding, the Raich
court established several important principles that guide our
decision. First, the Court reiterated that “[i]n assessing the
scope of Congress’ authority under the Commerce Clause, . . .
the task before [the Court] is a modest one. [The Court] need
not determine whether respondent[ ]’s activities, taken in the
aggregate, substantially affect interstate commerce in fact, but
only whether a ‘rational basis’ exists for so concluding.” Id.
at 22, citing United States v. Lopez, 514 U.S. 549, 557 (1995)
(emphasis added) (parallel citation omitted).
[2] In Raich, the Court reasoned that “[g]iven the enforce-
ment difficulties that attend distinguishing between marijuana
cultivated locally and marijuana grown elsewhere . . . , and
concerns about diversion into illicit channels, we have no dif-
ficulty concluding 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
CSA.” Id. (citation and footnote reference omitted). The
Raich court also noted “[t]hat the regulation ensnares some
purely intrastate activity is of no moment. As we have done
many times before, we refuse to excise individual components
of that larger scheme.” Id. In reaching its holding that applica-
tion of the CSA to purely intrastate production of marijuana
was within Congress’ authority under the Commerce Clause,
the Supreme Court distinguished the CSA from those statutes
that it struck as unconstitutional in Lopez (holding that the
Gun-Free School Zones Act was an invalid exercise of Con-
gress’ Commerce Clause authority) and Morrison (striking
the Violence Against Women Act). The Court distinguished
UNITED STATES v. MCCALLA 13595
Raich from Lopez and Morrison in part based on the fact that
in those cases, the statutes in question had no connection to
commerce or economic enterprise. Raich, 545 U.S. at 23-25.
In contrast, the CSA is “a comprehensive framework for regu-
lating the production, distribution, and possession of five
classes of ‘controlled substances’ ” most of which “have a
useful and legitimate medical purpose . . .” Id. at 24. “The
regulatory scheme is designed to foster the beneficial use of
those medications, to prevent their misuse, and to prohibit
entirely the possession or use of substances listed in Schedule
I, except as a part of a strictly controlled research project.” Id.The Supreme Court emphasized that “[u]nlike those at
issue in Lopez and Morrison, the activities regulated by the
CSA are quintessentially economic. ‘Economics’ refers to
‘the production, distribution, and consumption of commodi-
ties.’ ” Id. at 25 (citation omitted). The court noted that
“[p]rohibiting the intrastate possession or manufacture of an
article of commerce is a rational (and commonly utilized)
means of regulating commerce in that product.” Id. at 26(footnote reference omitted). The Court concluded that
“[b]ecause the CSA is a statute that directly regulates eco-
nomic, commercial activity, our opinion in Morrison casts no
doubt on its constitutionality.” Id.In reaching this conclusion, the Raich Court rejected the
appellants’ argument that the cultivation of homegrown medi-
cal marijuana represented a “ ‘separate and distinct’ class of
activities . . . beyond the reach of federal power.” Id. The
Court determined that not only was this purported class not
exempt from inclusion in the CSA, but it was “an essential
part of the larger regulatory scheme.” Id. at 26-27.
[3] The Supreme Court’s reasoning in Raich supports a
conclusion that the challenged statute in this case is not
unconstitutional because it criminalizes the production of
“homegrown” child pornography. Here, as in Raich, the stat-
ute is comprehensive in that it seeks to regulate (more accu-
13596 UNITED STATES v. MCCALLA
rately, exterminate) the entire child pornography market
(similar to at least one category of the CSA — marijuana).
See United States v. Maxwell, 446 F.3d 1210, 1217 n.7 (11th
Cir. 2006). Moreover, as in Raich, the statute addresses a
commodity — child pornography — which, Congress found,
“[has] become [a] highly organized, multimillion dollar
industr[y] that operate[s] on a nationwide scale.” S. Rep. No.
95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42,
1977 WL 9660.
[4] Following the reasoning in Raich, the task before us
then is to determine “whether Congress could rationally con-
clude that the cumulative effect of the conduct by [McCalla]
and his ilk would substantially affect interstate commerce —
specifically the interstate commerce Congress is seeking to
eliminate.” Maxwell, 446 F.3d at 1218. As the Eleventh Cir-
cuit in Maxwell concluded, “[v]iewed in this light, there is
nothing irrational about Congress’s conclusion, supported by
its findings, that pornography begets pornography, regardless
of its origin.” Id.Other circuits considering this issue post-Raich have
agreed. The Fourth Circuit noted that “[j]ust as Congress
rationally concluded that demand might draw homegrown
marijuana into interstate markets, thereby ‘frustrating the fed-
eral interest in eliminating commercial transactions in the
interstate market in their entirety,’ so too might Congress
rationally fear that homemade child pornography would find
its way into interstate commerce.” United States v. Forrest,
429 F.3d 73, 78 (4th Cir. 2005), quoting Raich, 545 U.S. at
19 (alteration omitted); see also United States v. Chambers,
441 F.3d 438, 442, 454-55 (6th Cir. 2006) (rejecting an as-
applied challenge to § 2252, prohibiting transportation of
child pornography); United States v. Blum, 534 F.3d 608, 609,
611 (7th Cir. 2008) (upholding § 2251, noting that “Congress
in enacting [§ 2251] recognized the danger posed by any child
pornography regardless of origin . . .”); United States v.
Mugan, 441 F.3d 622, 629-30 (8th Cir. 2006) (reaching same
UNITED STATES v. MCCALLA 13597
conclusion without citing Raich); United States v. Jeronimo-
Bautista, 425 F.3d 1266, 1272-73 (10th Cir. 2005) (upholding
constitutionality of § 2251 as applied to purely intrastate pro-
duction); United States v. Sullivan, 451 F.3d 884, 890 (D.C.
Cir. 2006) (upholding constitutionality of child pornography
possession statute).
[5] Given Congress’s broad interest in preventing sexual
exploitation of children, it is eminently rational that Congress
would seek to regulate intrastate production of pornography
even where there is no evidence that it was created for com-
mercial purposes. See United States v. Ortiz-Graulau, 526
F.3d 16, 19 (1st Cir. 2008) (“preventing exploitation of chil-
dren could be aided by the statute’s broad ban on taking such
photographs even for private use”) (citation omitted). Indeed,
in enacting the Child Pornography Prevention Act, Congress
specifically expressed the idea echoed by the 11th Circuit in
Maxwell that child pornography begets more child pornogra-
phy regardless of its origin: “the existence of and traffic in
child pornographic images . . . inflames the desires of child
molesters, pedophiles, and child pornographers who prey on
children, thereby increasing the creation and distribution of
child pornography and the sexual abuse and exploitation of
actual children who are victimized as a result of the existence
and use of these materials . . .” Pub. L. No. 104-208, § 121,
1996 HR 3610, 110 Stat. at 3009-27.
[6] Because it is rational to conclude that homegrown child
pornography affects interstate commerce, we “need not
inquire into the specifics of [McCalla’s] possession: when a
general regulatory statute bears a substantial relation to com-
merce, the de minimis character of individual instances arising
under that statute is of no consequence.” United States v.
Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006) (citation, alter-
ation and internal quotation marks omitted).
McCalla’s reliance on our decision in United States v.
McCoy, 323 F.3d 1114, 1117 (9th Cir. 2003), a case in which
13598 UNITED STATES v. MCCALLA
we found unconstitutional the application of § 2252 to a
mother who possessed a single photograph in which she and
her child appeared partially nude, is misplaced. McCoy
involved possession of child pornography, rather than its pro-
duction. Moreover, to the extent the reasoning employed in
McCoy relied on the local nature of the activity, it has been
overruled by the Supreme Court’s decision in Raich. See Mil-
ler v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003), en banc
(“We hold that the issues decided by the higher court need not
be identical in order to be controlling. Rather, the relevant
court of last resort must have undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.”).
[7] Because McCalla’s Commerce Clause arguments are
unavailing, we affirm the district court’s denial of McCalla’s
motion to dismiss on this basis.
B. Territorial Jurisdiction
[8] Citing 18 U.S.C. § 7, McCalla raises the argument that
federal courts are without jurisdiction over matters that do not
occur exclusively in federal territory. This argument is wholly
without merit. The federal court’s jurisdiction is not limited
to federal crimes committed on federal lands. Pursuant to 18
U.S.C. § 3231, “[t]he district courts of the United States have
original jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States.” (Emphasis
added). See also United States v. Begay, 42 F.3d 486, 499 (9th
Cir. 1994) (holding that where situs is not an element of the
offense, federal criminal statutes apply “equally to everyone
everywhere within the United States”).
IV. CONCLUSION
Regulation of intrastate production of child pornography
within the context of eliminating the national child pornogra-
phy industry is a valid exercise of Congress’s authority under
UNITED STATES v. MCCALLA 13599
the Commerce Clause. Application of this statute to McCalla
was not unconstitutional. Jurisdiction to enforce § 2251(a) is
not limited to federal enclaves as argued by McCalla. Accord-
ingly, we uphold the district court’s denials of both motions
to dismiss the indictment.
AFFIRMED.