United States v. John Clark Machtley, III

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 20, 2006
No. 05-13520 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00162-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CLARK MACHTLEY, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 20, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
John Clark Machtley, III, appeals his conviction for possession of child
pornography that was transported through interstate commerce. Machtley argues
that the district court should have dismissed the indictment against him because his
possession of child pornography did not substantially affect interstate commerce.
Because Machtley admitted that the child pornography traveled in interstate
commerce, we affirm the denial of his motion to dismiss.
BACKGROUND
Machtley was indicted for knowing possession of a computer hard drive
containing more than three images of child pornography that had been mailed,
shipped, or transported in interstate commerce. 18 U.S.C. § 2252A(a)(5)(B).
Machtley moved to dismiss the indictment under United States v. Maxwell, 386
F.3d 1042 (11th Cir. 2004), vacated and remanded, 126 S. Ct. 321 (2005), on the
ground that the pornographic images did not substantially affect interstate
commerce. The district court denied this motion. Machtley pleaded guilty and
admitted that the images were downloaded from the internet. Machtley reserved
for appeal his challenge to the constitutionality of the indictment. Before his
sentencing, Machtley filed a renewed motion to dismiss on the same interstate
commerce grounds, which the district court denied. The district court sentenced
Machtley to 27 months of imprisonment and three years of supervised release.
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STANDARD OF REVIEW
We review a denial by the district court of a motion to dismiss an indictment
for abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.
2004). Because Machtley claims there is a jurisdictional defect, we apply the same
standard of review as a sufficiency of the evidence challenge. United States v.
Clay, 355 F.3d 1281, 1286 (11th Cir. 2004). We review sufficiency of the
evidence challenges in criminal cases de novo, viewing the evidence in the light
most favorable to the government. United States v. Futrell, 209 F.3d 1286, 1288
(11th Cir. 2000).
DISCUSSION
Machtley argues that the government must prove that his possession of child
pornography had a substantial impact on interstate commerce. He relies on United
States v. Maxwell and United States v. Smith, 402 F.3d 1303 (11th Cir.), vacated
and remanded, 125 S. Ct. 2938 (2005). Both of these decisions were vacated by
the Supreme Court and remanded to be considered in the light of Gonzalez v.
Raich, 545 U.S. —, 125 S. Ct. 2195 (2005). They are no longer binding
precedents.
Even if Maxwell and Smith had not been vacated by the Supreme Court,
they would not control our decision. Machtley’s argument erroneously relies on
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the second jurisdictional hook of section 2252A(a)(5)(B) – whether the materials
used to produce the images traveled in interstate commerce – rather than the first
jurisdictional hook –whether the images themselves traveled in interstate
commerce. See 18 U.S.C. § 2252A(a)(5)(B). In both Maxwell and Smith, we
considered whether materials that were eventually used for child pornography had
previously traveled in interstate commerce, which relied on the second
jurisdictional hook. See Maxwell, 386 F.3d at 1051, 1062 n.20; Smith, 402 F.3d at
1309. In Maxwell, we noted that “Congress wields the power to regulate interstate
child pornography, not because such pornography has a substantial effect on
interstate commerce in the aggregate, but because such pornography is a ‘thing in
interstate commerce.’ A substantial effect need not be established for this sort of
regulation . . . .” Id. at 1059 (quoting United States v. Lopez, 514 U.S. 549, 558,
115 S. Ct. 1624, 1629 (1995)). At his guilty plea hearing, Machtley admitted that
the pornographic images on his computer had traveled in interstate commerce,
which satisfied the first jurisdictional hook of section 2252A(a)(5)(B).
The use of the internet to transmit or receive child pornography is interstate
commerce. In United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004),
we held that the internet is an instrumentality of interstate commerce, and that
Congress has the authority to regulate the internet to prohibit its use for harmful or
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immoral purposes, regardless of whether that use only impacts purely intrastate
conduct. Machtley admitted to use of the internet to receive images of child
pornography.
CONCLUSION
The denial of the district court of Machtley’s motion to dismiss is
AFFIRMED.
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