1 At the time of Kallest ad’s charged conduct, 18 U.S.C. §

2252(a)(4)(B) provided criminal penalties for any person who

(B) kn o wingly possesses 3 or more books, magazines,

periodicals, films, video tapes, or other matter which

contain any visual depiction that has been mailed, or has

been shipped or transported in interstate or foreign

commerce, or which was produced using materi als which

have been mailed or so shipped or transporte d, by any

means including by computer, if –

(i) the producing of such visual depiction IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-51089

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES O. KALLESTAD,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this 28 U.S.C. § 2255 case we consider a challenge to the

constitutionality of 18 U.S.C. § 2252(a)(4)(B), which prohibits the

possession of sexually explicit depictions of minors if those

depictions or the materials used to produce them were shipped in

interstate commerce. 1 We are persuaded that Congress couldinvolves t he use of a minor engaging in

sexually explicit conduct; and

(ii) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B) (1991). Section 2252(a)(4) was amended

on October 30, 1998. S ee Protection of Children From Sexual

Predators Act of 1998, Pub. L. No. 105-314, T itle II, §§ 202(a),

203(a), 112 Stat. 2977, 2977-78. The amended statute makes it an

offense to possess one or more (rather than three or more) sexually

explicit depictions of a minor. S ee 18 U.S.C.A. § 2252(a)(4)(B)

(2000). The amendments also provide for an affirmative defense

when three or fewer matters are possessed and the defendant either

promptly destroyed them or contacted law enforcement authorities.

See 18 U.S.C.A. § 2252(c) (2000). Kallestad’s conduct was

complet ed by October 31, 1991, the date on which officers

discovered the photographs. Since Kallestad’s conduct occurred

before the statute was amended, the government was required to

prove that he had three or more or sexually explicit depictions of

a minor.

2 rationall y conclude that to regulate a national market in child

pornography it was necessary to regulate its local possession.

I

Government agents found a large number of nude photos and

films of women, some of whom appeared to be minors, in Kallestad’s

home. They also found notes he made regarding the women,

including their names, addresses, and phone numbers. Agents used

these notes to locate some of the women, and they discovered that

several of them were minors at the time the photos and films were

taken.

Kallestad had advertised in the Austin American Statesman

newspaper for “slender female nude models." Some of the

advertisements stated that the age of the "models" was

"unimportant." Several of the girls who responded to the

advertisement were 16 to 17 years old, and most of t hem told2 His other offenses included conspiracy to commit bank fraud,

bank fraud, aiding and abetting, and making false statements to a

federally insured bank.

3 Kallestad their ages and that they were high school students.

Kallestad took pictures and made films of the girls engaged in

sexually explicit conduct and in some instances of them engaging in

such conduct with him. The photos and films were made at

Kallestad’s home in Austin, Texas. The film used to make the

photos and films was manufactured outside of Texas.

Kallestad was convicted of numerous offenses inclu ding six

counts charging violation s of section 2252(a)(4)(B). 2 On direct

appeal, we vacated his sentence, finding an error in his sentence.

After Kallestad was resentenced, he moved for relief under 28

U.S.C. § 2255. He argues that his conviction for possession of

material inv olving the sexual exploitation of minors should be

vacated because the statute making that conduct an offense exceeds

the authority of Congress under the Commerce Clause. Kallestad did

not raise this issue on direct appeal.

Th e magistrate recommended denying relief, and the district

court did so, also denying a certificate of appealability. We

granted a certificate of appealability on the issue of the

constitutionality of the statute prohibiting possession of

materials involving the sexual exploitation of minors.

II

The government argues that Ka llestad’s challenge is barred

because he did not raise the question on direct appeal. A section

2255 movant who fails to raise a constitutional or jurisdictional3 United States v. Patten

, 40 F.3d 774, 776-77 (5th Cir. 1994)

(per curiam); U

nited Stat es v. Pierce , 959 F.2d 1297, 1301 (5th

Cir. 1992); U

nited States v. Capua

, 656 F.2d 1033, 1037 (5th Cir.

Unit A 1981).

4 Patten , 40 F.3d at 776-77; Pierce , 959 F.2d at 1301.

5 See United States v. Drobny , 955 F.2d 990, 995 (5th Cir.

1992).

6 S ee Douglass v. United Services Auto Ass’n , 79 F.3d 1415,

1428-29 (5th Cir. 1996).

4 issue on direct appeal waives the issue for a collateral attack on

his conviction, unless there is cause for the default and prejudice

as a result. 3 Kallestad argues that his counsel was ineffective

for not raising the issue on direct appeal.

It is true that ineffective assistance of counsel can meet the

cause and prejudice requirement for overcoming procedural default

in a section 2255 motion. 4 We do not consider the contention

further because the government failed to preserve the issue. The

government asserted the procedural bar before the magistrate, but

filed no objection to the magistrate’s proposed findings and

recommendations even though Kallestad fil ed objections and the

district court conducted a de novo re view of the case. The

government must invoke the procedural bar in the district court to

raise it here. 5 A party who fails to file written objections to a

magistrate judge’s proposed findings and recommendations waives the

objection, and on appeal we will review the issue for plain error

only. 6 The district court did not err in reaching the merits of

the constitutional challenge.

III7 See United States v. Jennings

, 195 F.3d 795, 800 (5th Cir.

1999).

8 194 F.3d 465, 477-79 (3d Cir. 1999).

9 Id. at 474.

10 317 U.S. 111 (1942).

11 See Rodia

, 194 F.3d at 476; see also United States v.

Robinson , 137 F.3d 652, 655-56 (1st Cir. 1998).

12 See United States v. Bausch

, 140 F.3d 739, 740-42 (8th Cir.

1998); Robinson , 137 F.3d at 654-55.

13 514 U.S. 549 (1995).

5 Kallestad argues that section 2252(a)(4)(B), which prohibits

mere possession of child porno graphy, is beyond Congress’s power

under the Commerce Clause. We review this constitutional challenge

to a federal statute de novo

. 7

Similar arguments have been made in, and rejected by, other

courts. The Third Circuit, in U nited States v. Rodia

, 8 rejected a

similar challenge by a defendant convicted of possessing child

pornography. The court noted that, in passing the 1978 Protection

of C hildren Against Sexual Exploitation Act, Congress explicitly

found that child pornography was a “multi-million dollar industry,”

an d the court concluded that there was a “substantial interstate

market” in child pornography. 9 The R odia court then analogized to

Wickard v. Filburn

, 10 and upheld the statute. 1 1 Other courts have

upheld section 2252(a)(4)(B) based on i ts jurisdictional hook,

which requires that either the pornography itself, or the material

used to manufacture it, has moved in interstate commerce. 12

In United States v. Lopez

, 13 the Supreme Court defined three14 Id. at 558-59.

15 120 S.Ct. 1740 (2000).

16 Id. at 1749-51.

6 categorie s of activity Congress may regulate under the Commerce

Clause: channels of interstate commerce, persons or things

traveling in interstate commerc e, and activities having a

substantial effec t on interstate commerce. 1 4 In U nited States v.

Morrison

, 15 the Cour t clarified how the third category is to be

analyzed. Courts are directed to inquire (1) whether the statute

regulates “commerce,” or an activity that might be deemed an

“economic activity,” broadly defined; (2) whether the statute has

an “express jurisdictional element” that restricts its application

to activities that have “an explicit connection with or effect on

interstate commerce”; (3) whether congressional findings support

the judgment that the activity in question has a substantial effect

on interstate commerce; and (4) whether the act made an offense has

an attenuated relationship to that substantial effect on interstate

commerce. 16

Kallestad argues that his offense falls within the third

cate gory, and like the crime of possessing a gun near a school

zone, does not have a sufficiently substantial effect on interstate

commerce to fall within Congress’s authority. He challenges

section 2252(a)(4)(B) facially and as applied. We find his

challenge unpersuasive.

A17 Attorney General’s Commission on Pornography: Final Report

406 (U.S. Dep’t of Justice, 1986).

18 Id. at 407.

19 Id. at 408.

20 United States v. Knutson , 113 F.3d 27, 30 (5th Cir. 1997),

quoting United States v. Wilks

, 58 F.3d 1518, 1521 (10th Cir.

1995).

21 See Wickard

, 317 U.S. at 114. The dissent impl ies that

Wickard is no longer tenable in t he wake of the Supreme Court's

7 Applying the first Morrison factor, the conduct being

regulated here is commercial in character, defined broadly. As the

198 6 Attorney General’s Commission on Pornography found, much of

the interstate traffic in child pornography “involves photographs

taken by child abusers themselves, and then either kept or

informally distributed to other child abusers.” 17 Such pornography

is exchanged through the mails, 1 8 and also becomes the basis for

commercial child pornography magazines, which are m ade not with

photographs taken by the m agazine producers, but rather with

homemade photographs submitte d by private child abusers. 1 9 This

case is therefore distinc t from L opez

, as the child pornography

statute "represents Congressional regulation of an item bound up

with interstate attributes and thus differs in substantial respect

from legislation concerning possession of a firearm within a purely

local school zone." 20 Moreover, W ickard affirms that, when a person

produces for their own consumption a product that is traded in an

interstate market, his conduct is economic in character. Kallestad

may not have intended to sell his photographs, but then Filburn

ne ver intended to sell his wheat. 2 1 In this regard, Kallestad’sdecisions in Lopez and Morrison

. Although the Court has noted that

Wickard resides in the outer boundaries of the Commerce Power, see

United States v. Lopez

, 514 U.S. 549, 560 (1995), it has never

overruled the case. The Court has repeatedly underscored its

unwillingness to recognize the overruling of its prior decisions by

implication. See Agostini v. Felton

, 521 U.S. 203, 237 (1997) ("We

do not acknowledge, and we do not hold that other courts should

conclude our more recent cases have, by implication, overruled an

earlier precedent. . . . [T]he Court of Appeals should follow the

case which directly controls, leaving to this Court the prerogative

of overruling its own decisions.") (internal quotation marks

omitted).

22 This court has said t hat the lack of such an element was

central to the Lopez Court’s decision to strike down the Gun-Free

School Zones Act. S ee United States v. Luna

, 165 F.3d 316, 320

(5th Cir. 1999).

23 18 U.S.C. § 2252(a)(4)(B).

8 conduct was unlike the rape at issue in Morrison

.

B

Section 2252(a)(4)(B) also contains a jurisdictional hook. 22

Se ction 2252(a)(4)(B) makes it an offense to possess child

pornography that “has been mailed, or has been shipped or

transported in interstate or foreign commerce, or which was

produced by using materials which have been mailed or so shipped or

transported.” 23 No evidence demonstrated that Kallestad’s pictures

moved in interstate commerce, but the evidence established that his

film did.

This jurisdictional element is not alone sufficient to render

section 2252(a)(4)(B) constitutional. That argument, advanced by

the government, has no principled limit. Where the relationship

between the interstate and local activity is attenuated, a

jurisdictional hook alone cannot justify aggregating effects upon24 S. Rep. No. 95-438, 1978 U.S.C.C.A.N. 40, 44.

25 See Part A, supra

. The Meese Commission also advocated

expanding the jurisdictional coverage of the then-existing version

of the statute to encompass activities that "affect" commerce. See

Attorney General’s Commission on Pornography, supra , at 475.

9 interstate commerce to find Congressional power under the Commerce

Clause. It is one thing for Congress to prohibit possession of a

weapon that has itself moved in interstate commerce, but it is

quite another thing for Congress to prohibit homicides using such

weapons.

What the juri sdictional hook does accomplish in this case,

however, is to limit prosecutions under section 2252(a)(4)(B) to a

smaller universe of provable offenses. It further reflects

Congress’s sensitivity to the limits upon its commerce power, and

Congress’s express interest in regulating national markets.

C

Ample findings establish the proposition that local possession

of child pornography impacts interstate commerce. In passing the

original 1977 Act , Congress found that child pornography was

harmful to c hildren, and represented “a large industry –

representing millions of dollars in annual revenue

– that operates

on a nationwide scale and relies heavily on the use of the mails

and other instrumentalities of interstate and foreign commerce.” 24

Even then Congress did not reach for local possession. That

effort, now at issue, came only after the widely reported Meese

Commission extensively documented the interstate, commercial nature

of child pornography. 25

These findings show that child pornography is a growing,26 1978 U.S.C.C.A.N. at 42-48.

27 124 F.3d 667 (5th Cir. 1997).

28 179 F.3d 230, 232-33 (5th Cir. 1999) (equally divided en

banc) (Higginbotham, J., dissenting).

10 predatory business that exploits and injures the most vulnerable

among us. Congress found that the child pornography trade operates

across the United States, out of major cities and small towns

alike, to reach consumers nationwide. 26

D

We come, therefore, to the fourth Morrison factor

– whether or

not the act crimina lized has only an attenuated relationship to

interstate commerce. As explained in Morrison , as well as in our

opinion in United States v. Bird

, 27 and the dissent in United States

v. Hickman

, 28 the question is the ration ality of Congress’s

judgment. We ask whether Congress could rationally have determined

that it must reach local, intrastate conduct in order to

effectively regulate a national, interstate market.

It is not sufficient merely for Congress to analogize the

local conduct it seeks to regulate to some form of interstate

conduct it may permissibly regulate. Such a license would invite

the “hous e that Jack built” justification for federal authority,

unfettered and nigh unp rincipled. Yet the commerce power has

internal limits, that are judicially enforceable. We enforce one

such internal limit today by asking if there is a national market

in the sense that its discrete and local parts are interdependent

and interact. This inquiry lays aside large classes of local

cond uct that, while they may present a serious, even “national,”11

problem, do not involve a national market. For example, that the

homicide rate is high and presents a national concern does not mean

that Congress may federally regulate purely local murder.

Congre ss determined that an interstate market in child

pornography exists. No one questions Congress’s authority to

regulate that market directly. Unlike the rape at issue in

Morrison

, the possession of child p ornography interacts with a

national market on both the supply and demand side. Applying the

commerce power, read through the Necessary and Proper Clause,

Congress can reach purely local possession if it rationally

determines that doing so is necessary to effectively regulate the

national market.

Congress could reach such a conclusion with respect to child

pornography because it may often be impossible to determine whether

a specific piece of child pornography has moved in interstate

commerce. In some cases, law enforcement officials may be

fortunate enough to intercept child pornography en route. Absent

that, however, child pornography does not customarily bear a label

identifying the state in which it was produced. For that reason,

Congress could rationally determine that banning purely local

possession was a necessary adjunct to its effort to ban interstate

traffic. Congress can rationally decide that failing to reach to

the fountain heads will impede its regulation of the interstate

stream.

This is the rationale supporting the federal laws prohibiting29 See United Stat es v. Lopez , 459 F.2d 949, 951 (5th Cir.

1972) (upholding federal drug laws, stating “where it is apparent

that an attempt to separate interstate activities from intrastate

activitie s would be a futile exercise substantially interfering

with and obstructing the exercise of the granted power of Congress

to regulate interstate commer ce, that attempt is not required”).

Although this case was decided before the Supreme Court's 1995

Lopez decision, courts addressing Commerce Clause challenges to 18

U.S.C. § 841 since that decision have found it constitutional. See

United States v. Edwards

, 98 F.3d 1364, 1369 (D.C. Cir. 1996);

United States v. Kim

, 94 F.3d 1247, 1249-50 (9th Cir. 1996); United

States v. Bell

, 90 F.3d 318, 321 (8th Cir. 1996); United States v.

Lerebours , 87 F.3d 582, 584-85 (1st Cir. 1996).

30 The Supreme Court in Lopez refused to decide t he broader

question of whether Congress could forbid the "mere possession" of

firearms. See Lopez

, 404 U.S. at 339 n.4. Since the Supreme

Court's Lopez decis ion, this Court has held that Congress could

forbid the possession of a fire arm by a person subject to a

protective order prohibiting domestic violence. See United States

v. Pierson

, 139 F.3d 5 01 (5th Cir. 1998); 18 U.S.C. § 922(g)(8).

In Pierson

, this Court found the presence of a jurisdictional hook

a disp ositive basis for distinguishing the Supreme Court's L opez

decision. See Pierson

, 139 F.3d at 503. See also United States v.

Knutson

, 113 F.3d 27 (5th Cir. 1997) (upholding 18 U.S.C. § 922(o),

which criminalizes possession of a machine gun, against a Commerce

Clause challenge); United States v. Kirk , 105 F.3d 997, 999-1005

(5t h Cir. 1997) (en banc) (opinion of Higginbotham, J.) (same).

The dissent's arguments in this case contradict the clear import of

this Court's decisions in the drug and firearms contexts. The logic

underlying the dissent would require a reversal of these decisions,

thereby overturning a vital and e stablished body of federal

protections against criminal conduct.

31 179 F.3d at 232-33.

32 124 F.3d at 667.

12 possession of certain controlled substances 29 and firearms. 30 We

explained its limits upon the commerce power in a dissenting

opinion in United States v. Hickman

, 31 and earlier in United States

v. Bird

. 32 As we observed in Bird :

[O]ur inquiry must determine not simply whether section33 Id. at 677.

13

248(a)(1) proscribes intrastate activity that has (or

might have) a substantial affect on interstate commerce,

but rather whether there is a national commercial market

in abortion-related services such that the regulated

conduct

– considered in light of the size and scope of

the benchmark market – substantially affects interstate

commerce. 33

Bird holds, as we again insist today, that in the absence of a

jurisdictio nal hook itself sufficient to sustain its regulation,

Congress must have as its purpose the regulation of a national

market and a rational basis for concluding that permitting the

proscribed conduct would impair Congress’s ability to regulate that

market.

A true market is inevitably commercial, and is pushed by

supply and demand, whether manifested in swaps or purchase and

sale. The Congress, supported by the findings of the Meese

Commission, found such a market in child pornography. With such a

market w e have little hesitation in concluding that where the

product is fungible, such that it is difficult if not impossible to

trace, Congress can prohibit local possession in an effort to

regulate pro duct supply and demand and thereby halt interstate

trade.

IV

In sum, acting 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 practical14

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 cou l d 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

plainly 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. Our analysis would not differ if Congress’s

regulatory objective had been to end all production of wheat. For

like reasons, Congress can reach Kallestad’s pornography because it

legitimately seeks to eliminate the interstate market f or child

pornography. And it is rational to conclude that reaching local

possession is a necessary incident to that objective.

V

We hold that section 2252(a)(4)(B) is facially valid and that

its application to Kallestad in this case falls within Congress’s

power under the Commerce Clause.

AFFIRMED.E. GRADY JOLLY, Circuit Judge, dissenting:

I respectfully dissent. For whatever else it may be cited,

United States v. Lopez at least stands for the proposition that

purely intrastate, non-commercial possession of a non-fungible good

“is in no sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate commerce.”

514 U.S. 549, 567, 115 S.Ct. 1624 (1 995). In the light of this

understanding, 18 U.S.C. § 2252(a)(4) cannot constitution ally be

applied to this defendant’s conduct–-the simple local possession of

self-generated child pornography in which there is no suggestion of

commercial activity.

The Supr eme Court recently reiterated in U nited States v.

Morrison that “ Lopez ’s review of Commerce Clause case law

demonstrates that in those cases where we have sustai ned federal

regulation of intrastate activity based upon the activity’s

substantial effects on interstate commerce, the activity in

question has been some sort of economic endeavor.” 529 U.S. 598,

120 S.Ct. 1740, 1750 (2000). Like here, the activity in question

there was no “economic endeavor.” The challenged statute in

Morrison was the Violence Ag ainst Women Act, which criminalized

even intrastate, local acts of violence. The Court struck down the

statu te, stating that “[w]e accordingly reject the argument that

Congress may regulate non-economic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce.-16-

The Constitution requires a distinction between what is truly

national and what is truly local.” Id. at 1754.

Today, the majority has embraced logic the Morrison C ourt

eschewed. The majority holds that Congress can indeed regulate

non-economic, intrastate criminal conduct (possession of child

pornography), simply because “this reach into local i ntrastate

conduct was a necessary incident of a congressional eff ort to

regulate a national market.” It so holds, despite the M orrison

Court’s observation that “thus far in our Nation’s history our

cases have upheld Commerce Clause regulation of intrastate activity

only where that activity is economic in nature.” Id. at 1751.

The maj ority never asserts that simple possession of selfgenerated child pornography is an economic activity. Indeed,

simple possession for personal purposes cannot possibly be so

classified. Instead, the majority’s opinion relies on the fallback principle of Wickard v. Filburn to establish that Congress can

reach even non-economic intrastate activity. S ee 317 U.S. 111, 63

S.Ct. 82 (1942). The majority undertakes such an application of

Wickard

, even though Morrison explicitly reminds us that “in every

case wh ere we have sustained federal regulation under W ickard ’s

aggrega tion principle, the regulated activity was of an apparent

commercial character.” M orrison

, 120 S.Ct. at 1750, n.4. Because

I can think of no activity less commercial than the simple local34 We surely do not suggest that Wickard has been overruled by

the Supreme Court since only the Supreme Court can overrule its own

decisions. It cannot be denied, however, that some cases reach a

zenith before fading, sometimes to be reignited at a later date.

35 T he Lopez Court noted that while the “broad language” in

Wickard , which the court called “the most far reaching example of

Commerce Clause authority over intrast a te activity,” may have

“suggested th e possibility of additional expansion, . . . we

declin e here to proceed any further.” 514 U.S. at 560, 567.

Rather than expressly reaffirming the decision in W ickard

, Lopez

reconsidered that and other prior decisions to conclude that the

regulation of noncommercial intrastate conduct must be “an

essential part of a larger regulation of economic activity, in

which the regulatory scheme would be undercut unless the intrastate

activity were regulated.” Id. at 561.

-17- possession of a good produced for personal use only, I believe that

section 2252(a)(4) is unconstitutional as applied to Kallestad’s

conduct.

Neither does the majority persuade me that the requisite

connection to interstate commerce exists in this case because

outlawing local p ossession of visual depictions curbs interstate

demand for those pictures, thus, acc ording to the majority,

discouraging individuals from enterin g the interstate market for

child pornography. The majority relies in substantial part on

Wickard for this conclusion

. However, the persuasiveness of

Wickard 34 in the wake of Lopez and Morrison is questionable in the

analysis of the criminal statute we consider today. 35 Moreover, the

facts before this court are distinguishable from those in Wickard

.

The Lopez Court noted that Wickard “involved economic activity in36 The majority asserts that Wickard stands for the principle

that “when a person produces for their own consumption a product

that is traded in an interstate market,” Congress can regulate

local possession of that product. This expansive interpretation of

Congress’ commerce power has no limit. An interstate market exists

for virtually any product one might possess. Under this

-18- a way that the possession of a gun in a school zone does not.” I d.

at 560. In the same way, simple possession of child pornography

does not interact with interstate commerce like the possession and

consumption of wheat did in W ickard

. In W ickard

, the act of

possessing and consuming wheat directly affected the price of wheat

on the national market, and it was Congress’ interest in regulating

the price on th at market that constitutionally justified the

regulation of private wheat consumption:

It can hardly be denied that a factor of such volume and

variability as home-consumed wheat would have a

substantial influence on price and market conditions.

This may arise because being in marketable condition such

wheat overhangs the market an d, if induced by rising

p rices, tends to flow into the market and check price

increases.

. . . Home-grown wheat in this sense competes

with wheat in commerce.

317 U.S. 111, 128.

Congress’ authority to regulate intrastate possession and

consumption of w heat in W ickard derived only from the direct

economic interaction between consumption o f home-grown wheat and

the market price of wheat. However, the local possession of selfgenerated child pornography does not have such a direct and

substantial affect on an interstate market. 36 In the facts beforeformulation, one would be “hard pressed to posit any activity by an

individual that Congress is without power to regulate.” L opez

, 514

U.S. at 564.

-19- us, Kallestad’s non-commercial, local possession of child

pornography, where no interstate transportation or commercial

transacting occurre d, had at most an insubstantial affect on the

interstate market for child pornography.

Nevertheless, the majority attempts to connect simple

possession of pornography with inte rstate commerce by asserting

that such possession is “never wholly local” because “[l]ocal

inventories become the source of trading and selling as familiarity

dulls the utili ty of the pictures.” I do not think the majority

can so blithely assume this critical connection to interstate

commerce that provi des the essential authority for Congress’

regulat ion of intrastate conduct, especially when the evidence

shows that no such connection existed in the facts of t his case.

Indeed, the evidence shows that Kallestad did not purchase, trade,

sell, or barter the pornography he possessed. Nor does the

evidence show that he had any intention to ever do so . Whatever

weight Wickard should be given after Lopez and Morrison

, it cannot

be read to authorize congressional regulation o f any intrastate

possession of pornography on the theory that, in some cases, the

possessed material eventually flows in interstate commerce.-20-

Therefore, in accordance with Lopez and Morrison

, we should

hold that this si mple local possession of self-generated

pornographic material, where no commercial activity was involved,

no interstate transportation took place, a n d no congressional

findings support the necessity of such regulation in the framework

of a broader regulatory scheme, is beyond the reach of any

reasonable interpretation of Congress’ Commerce Clause power.

I respectfully dissent from the majority’s contrary

conclusion.