Maxwell, Plain Error, Child Porn, and a Circuit Split

Last year, in United States v. Maxwell (CA11) a unanimous three-judge panel held that Congress lacked power, under the Commerce Clause, to criminalized the instrastate possession of child pornography.  In Maxwell, the government argued that because the disk that contained the image travelled interstate, that Congress could criminalize what was possessed on the disk.  The panel disagreed, for reasons I explained here.

Plain error review will govern Commerce Clause-based challenges to 2252A convictions.
Yesterday, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a unanimous three-judge panel, relying on Maxwell, reversed the defendant's conviction.  Smith summarized the enumerated powers issue, but also held that Maxwell-like appeals will be reviewed for plain error, and that prosecuting the defendant was plain error.   Thus, if anyone has pending 2252A appeals in the Eleventh Circuit, raise Maxwell.

Forget plain error -- There wasn't any jurisdiction.
The better ruling would have been for the panel to hold that where Congress lacks the power to enact a criminal law, the court never had jurisdiction to hear the case (excpet, of course, to pass on constitutionality and thus jurisdiction).  Lack of subject matter jurisdiction can be raised at any time, and cannot be waived.  "The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, or even by estoppel.  The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion [ ]."  Wright & Kane, Federal Courts at 28 (6th ed.).  Thus, where Congress lacks the power to enact some law, it's obvious then that the courts lacked subject matter jurisdiction to supervise a prosecution under the invalid law.

There's a circuit split on Congress' power to criminalize child pornography under the Commerce Clause.
Also of note is the major circuit split.  The First Circuit has held that storing child pornography on items that have moved in interstate commerce is a sufficient nexus to interstate commerce.  United States v. Morales De-Jesus. Thus, Congress may criminalize the intrastate possession of child pornography contained on such devices.   A district court, relying on De-Jesus, rejected a commerce-based challenge.  United States v. Grimmett (D.Kan.).  So the issue should soon hit the Eighth Circuit.

The Eleventh Circuit disagreed.  United States v. Maxwell.  The Ninth Circuit has also held that instrate possession of child pornography can not be criminalized under the Commerce Clause.  United States v. McCoy.  So did the Sixth Circuit, though it's rationale was slightly different.  United States v. Corp.

There's no question that the Court will grant cert to address this circuit split.  The only question is what effect, if any, Ashcroft v. Raich will have on this line of cases.  If the Court uses the rationale in  Raich that I think it will, then Maxwell and Stewart will be no more.  In Raich, I predict the Court will hold that there is a federal interest in keeping marijuana prices high (to reduce demand and thus usage).  States that legalize marijuana, even if only for medicinal purposes, decrease demand for marijuana and thus the price decreases.  Cheper marijuana means more users.  I discussed this argument here.

A similar rationale will govern the child porn line of cases.  Namely, Congress has an interest in keeping the cost of child pornography high to reduce demand.  Thus, someone who obtains his child porn intrastate does not need to avail himself to the national market, and thus, the price of child pornography decreases.  Hence, to keep costs up (and thus reduce demand) Congress could rationally determine that it is necessary and proper to criminalize the intrastate production and possession of child porn.

Yeah, that rationale is basically crap, but I'm only saying what the law is, or will be, not what it should be.

UPDATE:  Judge McConnell provides us a comprehensive survey of the circuit split.

Many of our sister circuits have considered the constitutionality under the Commerce Clause of § 2252(a)(4)(B), as well as the analogous jurisdictional provision found in 18 U.S.C. § 2251(a), which criminalizes child pornography production. Of the nine circuits to address the issue, six have found such jurisdiction a valid exercise of Congress’ Commerce Power. See United States v. Morales-De Jesus, 372 F.3d 6, 10, 17-18 (1st Cir. 2004) (upholding a conviction under § 2251 finding that aggregated local intrastate production has a “substantial effect” on interstate commerce); United States v. Holston, 343 F.3d 83, 88-91 (2d Cir. 2003) (concluding that the activity proscribed by § 2251 is economic in nature and can be regulated at the intrastate level by Congress); United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001) (“There can be no doubt that the production of visual depictions of minors engaging in sexually explicit conduct, i.e., child pornography, is economic in nature.”); United States v. Hoggard, 254 F.3d 774, 746 (8th Cir. 2001) (affirming conviction under § 2251); United States v Kallestad, 236 F.3d 225, 228-31 (5th Cir. 2000) (affirming a conviction under § 2252(a)(4)(B) on the ground that the statute regulates an activity that has a “substantial effect” on interstate commerce in light of the Morrison factors); United States v. Angle, 234 F.3d 326, 338 (7th Cir. 2000) (affirming a § 2252(a)(4)(B) conviction under a market theory; the statute “prohibits intrastate activity that is substantially related to the closely regulated interstate market of child pornography”); United States v. Rodia, 194 F.3d 465, 476 (3d Cir. 1999) (affirming conviction under § 2252(a)(4)(B) under market theory); United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998) (affirming a conviction under § 2252(a)(4)(B) because the local possession of child pornography “‘through repetition elsewhere,’ . . . helps to create and sustain a market for sexually explicit materials depicting minors” and thus substantially affects the instrumentalities of interstate commerce).

Four decisions from three circuits have held prosecutions for possession of home-made child pornography unconstitutional as exceeding congressional power under the Commerce Clause. See United States v. Smith, 2005 WL 628686 (11th Cir., Mar. 18, 2005); United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004); United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Corp, 236 F.3d 325 (6th Cir. 2001). Three of these decisions involved factual circumstances with much more tenuous connections to interstate commerce than the facts present here. Maxwell concluded that the application of § 2252(a)(4)(B) was unconstitutional where the interstate transfer of blank computer disks was the sole connection to interstate commerce introduced at trial. 386 F.3d at 1049. McCoy involved a single family photograph of a child taken by a parent with, according to the Ninth Circuit, no commercial or interstate component. 323 F.3d at 1115. Corp involved several photographs taken by a 23-year-old man of a 17- year-old girl who was within months of majority status, 236 F.3d at 326.

United States v. Riccardi, No. 03-3132, slip op. at 26-30 (10th Cir. Apr. 19, 2005) (footnotes omitted).