United States v. Humphrey

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 18, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-4182
REGINALD HUMPHREY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:12-CR-00039-DB-1)
_________________________________
Submitted on the briefs:*
Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal
Public Defender, District of Utah, Salt Lake City, Utah, for Defendant-Appellant.
John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States
Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.
_________________________________
Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Reginald Humphrey appeals the denial of his motion to dismiss an indictment
charging him with one count of producing child pornography in violation of 18
U.S.C. § 2251(a). Humphrey asserts the district court erred in rejecting his argument
that applying § 2251(a) to the intrastate production of child pornography violates the
Commerce Clause. Finding no basis to overturn our prior precedent rejecting this
same argument, we affirm.
BACKGROUND
In 2007, S.L. told police that Humphrey, her mother’s live-in boyfriend, had
been sexually abusing her for the past two years in their Utah home. While
investigating these allegations, police found videos and still images on Humphrey’s
laptop computer and digital camera depicting the abuse. But they found no evidence
that Humphrey transmitted the videos or images over the internet or otherwise shared
them with anyone. Humphrey pled guilty in state court to one count of rape and one
count of forcible sexual abuse, and the state court imposed a prison term of five years
to life.
A federal grand jury subsequently indicted Humphrey for, in relevant part, one
count of producing child pornography, in violation of 18 U.S.C. § 2251(a).
Humphrey moved to dismiss the indictment, arguing that applying § 2251(a) to his
solely intrastate production of child pornography violates the Commerce Clause.
Citing this court’s precedent holding otherwise, the district court denied the motion.
Humphrey then conditionally pled guilty, reserving his right to appeal the district
court’s ruling. See Fed. R. Crim. P. 11(a)(2). The district court imposed a 16-year
2
prison sentence with a 4-year downward adjustment for time served on the
undischarged state sentence. See U.S.S.G. § 5G1.3(b)(1). Humphrey appeals.
DISCUSSION
In his plea, Humphrey admitted that he sexually assaulted S.L., produced a
video of the assault using a digital camera that had traveled in interstate commerce,
and transmitted the video to his laptop using an SD card that had also traveled in
interstate commerce.
There’s no question that § 2251(a) prohibits Humphrey’s conduct. See
§ 2251(a) (prohibiting using “any minor to engage in . . . sexually explicit conduct
for the purpose of producing any visual depiction of such conduct . . . if that visual
depiction was produced or transmitted using materials that have been mailed,
shipped, or transported in or affecting interstate or foreign commerce by any
means”). Rather, the question is whether applying § 2251(a) to Humphrey’s
conduct—i.e., locally producing child pornography for personal consumption without
placing the pornographic images into the stream of interstate commerce—violates the
Commerce Clause. This is a question of law that we review de novo. United States v.
White, 782 F.3d 1118, 1123 (10th Cir. 2015). But, as Humphrey acknowledges, this is
a question we’ve already answered.
In United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), we
held that applying § 2251(a) to the purely intrastate production of child pornography
doesn’t violate the Commerce Clause. 425 F.3d at 1273. There, the defendant and
two other men took photographs as they sexually assaulted a 13-year-old girl in Utah.
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Id. at 1268. Neither the victim nor the photographs ever crossed state lines. And there
was no evidence that the defendant intended to transmit the photographs across state
lines. But the camera, which wasn’t manufactured in Utah, had traveled in interstate
commerce. Id.
As here, the defendant argued that applying § 2251(a) to his solely intrastate
conduct violated the Commerce Clause. Id. at 1267. Relying extensively on the
Supreme Court’s then-recent decision in Gonzales v. Raich, 545 U.S. 1 (2005), we
rejected that argument. Jeronimo-Bautista, 425 F.3d at 1271-73. In Raich, the Court
upheld Congress’ power to regulate the purely local production, possession, and
consumption of medical marijuana. 545 U.S. at 8-9. In doing so, the Court relied in
part on Wickard v. Filburn, 317 U.S. 111 (1942). Raich, 545 U.S. at 17. In Wickard,
the Court upheld Congress’ power to regulate a farmer’s local production of wheat
intended solely for personal consumption, reasoning that “even if [the farmer’s]
activity be local and though it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a substantial economic effect
on interstate commerce.” 317 U.S. at 118, 125, 129.
Drawing on Raich and Wickard, we concluded in Jeronimo-Bautista that “the
intrastate production of child pornography could, in the aggregate, have a substantial
effect on the interstate market for such materials.” 425 F.3d at 1272. We reasoned
that, like the statute at issue in Raich, § 2251(a) regulates an economic activity
because it regulates “the ‘production, distribution, and consumption’” of a
commodity—i.e., child pornography—“for which there is an established, and
4
lucrative, interstate market.” Id. at 1271 (quoting Raich, 545 U.S. at 26). We further
reasoned that Congress rationally determined that the activity of locally producing
child pornography “constitute[s] an essential part of the interstate market for child
pornography that is well within Congress’ power to regulate.” Id. at 1273.
Humphrey acknowledges our decision in Jeronimo-Bautista. But he urges us
to overturn it in light of National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012) (NFIB).1 Relying on Chief Justice Roberts’ concurring
opinion,2 he argues that NFIB invalidated our analysis in Jeronimo-Bautista by
clarifying that Congress can’t “regulate inactivity in an interstate market, regardless
of the potential economic impact of such.” Aplt. Br. 8. And, he argues, because he
never distributed child pornography across state lines, applying § 2251(a) to his
conduct impermissibly regulates his “non-participation or inactivity[] in the relevant
interstate market.” Id. at 9.
We disagree. In NFIB, the Court considered a Commerce Clause challenge to
the Patient Protection and Affordable Care Act’s individual mandate provision. In a
1
The general rule against overturning the decision of another panel absent en
banc consideration doesn’t apply “when the Supreme Court issues an intervening
decision that is ‘contrary’ to or ‘invalidates our previous analysis.’” United States v.
Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (first quoting United States v. Meyers, 200
F.3d 715, 720 (10th Cir. 2000); then quoting United States v. Shipp, 589 F.3d 1084, 1090
n.3 (10th Cir. 2009)).
2
To analyze Humphrey’s argument, we assume without deciding that Chief
Justice Roberts’ opinion constitutes the Court’s opinion on the Commerce Clause’s
reach. See White, 782 F.3d at 1124 n.3 (declining to decide whether any NFIB
opinions on Commerce Clause were more than dicta); United States v. Robbins, 729
F.3d 131, 135 (2d Cir. 2013) (questioning whether NFIB says anything binding about
Commerce Clause, but assuming without deciding that Chief Justice Roberts’
statements are holdings of Court).
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fractured opinion, five justices agreed on one point: The Commerce Clause broadly
authorizes Congress to regulate commercial activity, but not to compel individuals to
engage in commercial activity. See NFIB, 132 S. Ct. at 2587 (Roberts, C.J.,
concurring) (stating that Commerce Clause doesn’t authorize Congress to “compel[]
individuals to become active in commerce by purchasing a product”); id. at 2644
(Scalia, J., dissenting) (stating in dissent joined by three other justices that “one does
not regulate commerce that does not exist by compelling its existence”). All five
justices characterized the individual mandate provision as an impermissible attempt
to force individuals to participate in the commercial activity that Congress sought to
regulate. Id. at 2590-91 (Roberts, C.J., concurring); id. at 2649 (Scalia, J.,
dissenting).
But those same five justices recognized the breadth of Congress’ power to
regulate commercial activity. And all five justices described Wickard’s ruling as
exemplifying the outer edge of that power. See NFIB, 132 S. Ct. at 2588 (Roberts,
C.J., concurring) (noting that unlike individuals in NFIB who chose not to buy health
insurance, “[t]he Farmer in Wickard was at least actively engaged in the production
of wheat, and the [g]overnment could regulate that activity because of its effect on
commerce”); id. at 2648 (Scalia, J., dissenting) (noting that Wickard involved
commercial activity—i.e., the production of wheat—rather than commercial
inactivity—i.e., “the failure to grow wheat”). Here, Humphrey didn’t fail to produce
child pornography; he actively engaged in producing it. That makes him akin to the
farmer in Wickard, not the uninsured individuals in NFIB.
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More importantly, in rejecting the government’s attempt in NFIB to stretch the
Commerce Clause’s reach beyond Wickard’s outer boundary, all five justices
reaffirmed the principles from Raich and Wickard that guided our analysis in
Jeronimo-Bautista. First, Congress’ power to regulate commerce “extends to
[intrastate] activities that ‘have a substantial effect on interstate commerce’”—even if
those activities impact interstate commerce “only when aggregated with similar
activities of others.” NFIB, 132 S. Ct. at 2585-86 (Roberts, C.J., concurring) (quoting
United States v. Darby, 312 U.S. 100, 119 (1941)). Second, that power includes the
authority to regulate “those who by some preexisting activity bring themselves within
the sphere of federal regulation.” Id. at 2592. Third, and finally, that power includes
the authority to regulate intrastate conduct when failing to do so would “substantially
undercut” Congress’ attempt to regulate the relevant interstate market. Id. at 2593.
In short, to the extent that NFIB says anything binding about the reach of
Congress’ Commerce Clause authority, it doesn’t say anything to suggest that reach
no longer extends as far as Raich and Wickard held. Thus, contrary to Humphrey’s
argument, NFIB didn’t invalidate our analysis in Jeronimo-Bautista. Nor did it
undermine our conclusion there that Congress has the power to regulate locally-
produced child pornography because (1) there is a thriving interstate market for it,
and (2) Congress has a rational basis for determining that the impact of not regulating
the purely intrastate production of child pornography would substantially affect
interstate commerce. Jeronimo-Bautista, 425 F.3d at 1271-72.
7
In any event, even assuming that NFIB cast doubt on Raich’s continuing
validity, the Court’s more recent decision in Taylor v. United States, 136 S. Ct. 2074
(2016), erases that doubt.3 There, the defendant challenged two Hobbs Act robbery
convictions.4 Specifically, he argued that the government failed to prove that by
robbing two Virginia drug dealers, he affected or attempted to affect commerce as
required by the Hobbs Act’s commerce element. Id. at 2078-79.
The Court disagreed. Id. at 2081-82. In doing so, it reiterated that Congress
has the power to regulate activities that “substantially affect interstate commerce in
the aggregate, even if their individual impact on interstate commerce is minimal.” Id.
at 2079 (citing Wickard, 317 U.S. at 125); see also id. at 2081 (“[I]t makes no
difference under [the Court’s Commerce Clause] cases that any actual or threatened
effect on commerce in a particular case is minimal.”).
In considering the reach of the Hobbs Act’s commerce element, the Court
noted it need only “graft [the Court’s] holding in Raich onto the commerce element.”
Id. at 2080. The Court said, “Raich established that the purely intrastate production
and sale of marijuana is commerce” subject to federal regulation. Id. Thus, the Court
held, “if the [g]overnment proves beyond a reasonable doubt that a robber targeted a
3
After the parties submitted their opening and response briefs, the government
submitted a letter directing us to the Supreme Court’s recent decision in Taylor. See
Fed. R. App. P. 28(j). On the same day the government filed that letter, Humphrey
sought and obtained an extension of time to file his optional reply brief. But
Humphrey neither filed a reply brief nor otherwise responded to the government’s
letter.
4
“The Hobbs Act makes it a crime for a person to affect commerce, or to
attempt to do so, by robbery.” Taylor, 136 S. Ct. at 2077 (citing 18 U.S.C.
§ 1951(a)).
8
marijuana dealer’s drugs or illegal proceeds,” the government proves the commerce
element—i.e., “that commerce over which the United States has jurisdiction was
affected.” Id. at 2080-81. Thus, Taylor bolsters our conclusion that NFIB didn’t
implicitly abrogate Raich.
Finally, as the government points out, every other circuit to address the issue
has concluded that NFIB didn’t alter Congress’ authority to regulate the intrastate
production of child pornography. See United States v. Sullivan, 797 F.3d 623, 631-32
(9th Cir. 2015) (concluding that NFIB doesn’t apply to regulating production of
intrastate child pornography “because § 2251 and § 2252 do not compel commerce,
but merely regulate an activity that Congress could rationally determine would affect
interstate commerce, taken in the aggregate”), cert. denied 136 S. Ct. 2408 (2016);
United States v. Parton, 749 F.3d 1329, 1331 (11th Cir. 2014) (concluding that Chief
Justice Roberts’ rationale in NFIB regarding Congress’ inability to regulate the
“inactivity of . . . uninsured individuals” doesn’t apply to § 2251(a), which
criminalizes activity of producing child pornography); United States v. Rose, 714
F.3d 362, 371 (6th Cir. 2013) (reasoning that NFIB didn’t abrogate Raich’s holding
that Congress can “regulate purely local activities that are part of an economic class
of activities that have a substantial effect on interstate commerce”; and noting that
unlike statutory provision at issue in NFIB, § 2251(a) doesn’t compel “into
commerce individuals who have refrained from commercial activity”).
We now join these circuits in holding that NFIB didn’t abrogate Raich or
otherwise impact Congress’ ability to regulate the intrastate production of child
9
pornography. Because we remain bound by Jeronimo-Bautista, we reject Humphrey’s
argument and affirm the district court’s denial of his motion to dismiss.
10