[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14773

________________________

D.C. Docket No. 6:13-cr-00032-RBD-TBS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

LOUIS RUGGIERO, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(June 30, 2015)

Before ED CARNES, Chief Judge, COX and GILMAN,∗ Circuit Judges.

ED CARNES, Chief Judge: 

 ∗

Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, 

sitting by designation.

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Louis Ruggiero pleaded guilty to producing child pornography, in violation 

of 18 U.S.C. § 2251(a). As a condition of that plea, he reserved the right to appeal 

the district court’s denial of his motion to dismiss the indictment. On appeal, he 

contends that § 2251(a), both facially and as applied, is unconstitutional under the 

Fifth and Sixth Amendments because it does not require the government to prove 

that a defendant knew that his victim was a minor. Ruggiero’s minor premise (the 

statute does not require proof that the defendant knew the victim was underage) is

correct, but his major premise (it is constitutionally required to do so) and his 

conclusion (therefore it is unconstitutional) are not.

I. Background

Ruggiero was 31 years old when he sent 15-year-old K.M. a Facebook 

“friend request.” After chatting online for a few weeks, Ruggiero convinced K.M. 

to meet him. They met near K.M.’s home, and he drove her to his house, where he 

had sex with her for the first time. Over the next few months, Ruggiero persuaded

K.M. to participate in more sexual conduct, including performing oral sex on him

and posing nude on his bed. He used his cell phone camera to take pictures of 

K.M. in these and other sexually explicit positions. 

A few months later, responding to an online advertisement, Ruggiero 

solicited sex with what he believed to be a 13-year-old girl and her stepfather. It 

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turned out that the girl did not exist and her “stepfather” was an undercover officer. 

After Ruggiero was arrested, law enforcement agents found the pornographic

photos of 15-year-old K.M. saved on his computer. 

Ruggiero was indicted on three counts of enticing a minor to engage in 

sexually explicit conduct in order to produce child pornography, in violation of 18 

U.S.C. § 2251(a), one count of attempting to entice a minor to engage in sexual 

activity, in violation of 18 U.S.C. § 2422(b), and one count of possession of child 

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Ruggiero filed a motion 

to dismiss the indictment. He argued, among other things, that 18 U.S.C. 

§ 2251(a) violates the Fifth and Sixth Amendments because knowledge of the 

victim’s age is neither an element of the offense nor available as an affirmative 

defense.

1 If knowledge of age were an element or an affirmative defense, 

Ruggiero asserted, he would go to trial and introduce evidence that he came to 

know K.M. through an adults-only website and she had told him that she was 18 

years old or older. The district court ruled that § 2251(a) is constitutional and 

denied Ruggiero’s motion to dismiss the indictment. 

Ruggiero eventually pleaded guilty to one count of sexual exploitation of a 

minor, in violation of 18 U.S.C. § 2251(a), and one count of attempting to entice a 

 1 That motion also challenged, on similar grounds, the constitutionality of 18 U.S.C. 

§ 2422(b). The district court ruled that § 2242(b) is constitutional. As part of his plea 

agreement, Ruggiero waived the right to appeal that ruling. 

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minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). As a 

condition to his guilty plea on the first offense, he reserved the right to appeal the 

court’s denial of his motion to dismiss as it pertained to the constitutionality of 

§ 2251(a). This is that appeal. 

II. Discussion

Ruggiero contends that we should reverse his conviction because § 2251(a) 

is unconstitutional both on its face and as applied to him in this case. He argues, 

among other things, that § 2251(a) violates the Fifth Amendment’s Due Process 

Clause “because it eliminates the element of mens rea from a criminal offense 

which is not a public welfare offense and which carries a severe penalty,” and 

violates the Sixth Amendment’s jury trial guarantee because “it deprives an 

accused of the right to have a jury determine the single fact that makes otherwise 

legal conduct illegal.” We review de novo challenges to a statute’s 

constitutionality, applying a strong presumption of validity. United States v. 

Lebowitz, 676 F.3d 1000, 1012 (11th Cir. 2012). 

Section § 2251(a) is the “production” section of a broad regulatory scheme 

that prohibits the production, receipt, distribution, and possession of child 

pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. It provides in relevant part:

Any person who employs, uses, persuades, induces, entices, or 

coerces any minor to engage in . . . any sexually explicit conduct for 

the purpose of producing any visual depiction of such conduct . . . 

shall be punished as provided under subsection (e) . . . if that visual 

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depiction was produced or transmitted using materials that have been 

mailed, shipped, or transported in or affecting interstate or foreign 

commerce by any means.

18 U.S.C. § 2251(a).

2

 On its face and as applied in this case, § 2251(a) requires 

only that a defendant arrange for a minor to engage in sexually explicit conduct for 

the purpose of creating a visual depiction, and that there be some nexus to 

interstate or foreign commerce.

3

 

Knowledge of the victim’s age is neither an element of § 2251(a) nor an 

affirmative defense to a prosecution for it. United States v. Deverso, 518 F.3d 

1250, 1257–58 (11th Cir. 2008); see also United States v. X-Citement Video, Inc., 

513 U.S. 64, 76 n.5 (1994) (stating, in dicta, that “producers may be convicted 

under § 2251(a) without proof they had knowledge of age,” and citing a Senate 

Conference Committee Report explaining that the deletion of the word 

“knowingly” from § 2251 reflected an intent to eliminate knowledge of age as an 

element of the crime). The question is whether the absence of a knowledge-of-age 

requirement in § 2251(a) violates the Fifth or Sixth Amendment.4

 2 The statute sets the age of majority at 18 years old and provides that “[a]ny 

individual who violates . . . this section shall be fined . . . and imprisoned not less than 15 

years nor more than 30 years.” 18 U.S.C. §§ 2251(e), 2256(1). 

3 The cell phone Ruggiero used to take photos of K.M. was manufactured in China, 

and Ruggiero does not appear to question the foreign commerce nexus. See infra note 8.

4 Most constitutional challenges to § 2251(a) have been brought under the First 

Amendment, with the argument being that the unavailability of a mistake-of-age defense 

renders the statute overbroad and chills protected speech. Those challenges have been 

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Most of Ruggiero’s arguments are styled as facial challenges to the 

constitutionality of § 2251(a). We will address those first before turning to his 

arguments that § 2251(a) is unconstitutional as applied to him. 

A. Facial Challenge

None of the arguments that Ruggiero makes in support of his contention that 

§ 2251(a) is facially unconstitutional can pass the “no set of circumstances” test for 

facial challenges. “A facial challenge, as distinguished from an as-applied 

challenge, seeks to invalidate a statute or regulation itself.” United States v. 

Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000). It is “the most difficult challenge 

to mount successfully” because it requires a defendant to show “that no set of 

circumstances exists under which the [law] would be valid.” United States v. 

Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987); see also Frandsen, 212 

 

almost uniformly rejected by courts, including by this Court in Deverso, 518 F.3d at 

1258. See United States v. Fletcher, 634 F.3d 395, 404 (7th Cir. 2011); United States v. 

Humphrey, 608 F.3d 955, 962 (6th Cir. 2010); United States v. Malloy, 568 F.3d 166, 

176 (4th Cir. 2009); United States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009); but 

see United States v. U.S. Dist. Court, Cent. Dist. Ca., 858 F.2d 534, 540–42 (9th Cir. 

1988) (engrafting a mistake of age defense on § 2251(a) after finding that the statute 

would otherwise violate the First Amendment). Only two of our sister circuits have

faced, as we do here, a challenge to § 2251(a) based on the Fifth Amendment’s Due 

Process Clause. See United States v. McCloud, 590 F.3d 560, 566–68 (8th Cir. 2009) 

(holding that district courts disallowance of a reasonable mistake-of-age defense to 

§ 2251(a) charge did not violate the defendant’s due process rights); Malloy, 568 F.3d at 

176–77 (same). We have not been able to find any published court of appeals decision 

addressing a Sixth Amendment challenge to § 2251(a)’s failure to require knowledge of 

the defendant’s age.

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F.3d at 1235 (stating that “no set of circumstances” is the general rule for 

evaluating facial challenges in this circuit). 

To succeed on his facial challenge, Ruggiero must convince us that 

§ 2251(a) would be unconstitutional even where a producer of child pornography 

indisputably knew that his victim was a minor — say, for instance, in a case where 

the victim had repeatedly told the defendant that he was fifteen years old, see

United States v. Lebowitz, 676 F.3d 1000, 1006–07 (11th Cir. 2012), or where the 

victim was the defendant’s thirteen-year-old stepdaughter, see United States v. 

Culver, 598 F.3d 740, 744–45 (11th Cir. 2010), or his eleven-year-old cousin, see

United States v. Kapordelis, 569 F.3d 1291, 1299 (11th Cir. 2009), or his 

coworker’s five-year-old son and two-year-old daughter, see United States v. 

Grzybowicz, 747 F.3d 1296, 1301 (11th Cir. 2014). Because we cannot be 

convinced that application of § 2251(a) would be unconstitutional in those 

circumstances, the facial challenge fails.

B. As-Applied Challenge

We turn now to Ruggiero’s claim that § 2251(a) is unconstitutional as 

applied to him. It is settled that § 2251(a) does not require proof that the defendant 

knew the victim was a minor. Deverso, 518 F.3d at 1257. Ruggiero concedes that; 

indeed, it is a premise of his challenge to the provision. At the same time, he leans 

heavily on dicta from United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. 

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Ct. 464 (1994), which is a statutory interpretation decision. The issue in that case 

was whether 18 U.S.C. § 2252 — the distribution counterpart to § 2251(a)’s 

production prohibition — required proof that the distributor defendant knew that 

the performer was a minor.5

 Id. at 66, 115 S. Ct. at 466. The Ninth Circuit Court 

of Appeals had held that § 2252 did not require that knowledge and, as a result, it

violated the First Amendment. Id. at 67, 115 S. Ct. at 466–67. The Supreme Court 

reversed, but avoided the constitutional question by holding that § 2252 actually 

does require proof that the defendant knew the performer was a minor. Id. at 78, 

115 S. Ct. at 472. 

In reaching that holding, the X-Citement Video Court made two 

observations, both in dicta, that Ruggiero thinks support his claim that § 2251(a) is 

unconstitutional. First, the Court observed that “§ 2252 is not a public welfare 

offense” but instead is “more akin to the common-law offenses against the state, 

the person, property, or public morals, that presume a scienter requirement in the 

absence of express contrary intent.”6

 Id. at 71–72, 115 S. Ct. at 468–69 (citation 

 5 Section 2252 prohibits “knowingly” transporting, shipping, receiving, distributing, 

or reproducing child pornography. See 18 U.S.C. § 2252.

6 Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240 (1952), is the Supreme 

Court’s seminal treatment of the public welfare offense doctrine. The Morissette Court 

identified two categories of statutory criminal offenses: (1) those steeped in the common 

law; and (2) public welfare offenses, which seek social betterment by “heighten[ing] the 

duties of those in control of particular industries, trades, properties or activities that affect 

public health, safety or welfare,” regardless of the actor’s intent. Id. at 250–56, 72 S. Ct. 

at 243–46. 

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omitted) (quotation marks omitted). Second, the Court noted that several of its 

First Amendment decisions “suggest that a statute completely bereft of a scienter 

requirement as to the age of the performers would raise serious constitutional 

doubts,” and “[i]t is therefore incumbent [on the Court] to read [§ 2252] to 

eliminate those doubts so long as such a reading is not plainly contrary to the intent 

of Congress.” Id. at 78, 115 S. Ct. at 472. 

In his unsuccessful attempt to paint constitutional law on a canvas of 

statutory construction, Ruggiero argues that § 2251(a), like § 2252, is not a public 

welfare offense, and therefore it is unconstitutional for Congress to dispense with a 

knowledge-of-age element. Even assuming that premise is correct — that 

§ 2251(a) is not a public welfare offense — the conclusion is not. The publicwelfare-offense doctrine has nothing to say about Congress’s authority to enact 

strict liability schemes; it is, instead, a tool of statutory interpretation to be used 

when the language of the statute is unclear about what mental state, if any, is an 

element of the crime. See generally Morissette v. United States, 342 U.S. 246, 72 

S. Ct. 240 (1952) (explaining the origins and utility of the public-welfare-offense

doctrine). That is all it is. 

Although a criminal statute originating in common law is generally 

construed to include “the ancient requirement of a culpable state of mind,” id. at

250, 72 S. Ct. at 243, the common law recognizes several exceptions to that rule of 

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construction. The relevant one is an exception for “sex offenses, such as rape, in 

which the victim’s actual age was determinative despite defendant’s reasonable 

belief that the girl had reached age of consent.” Id. at 251 n.8, 72 S. Ct. at 244 n.8. 

Against that common law backdrop, Congress has enjoyed nearly unfettered 

discretion to exclude knowledge from the definition of statutory crimes in 

“recognition that young children need special protection against sexual 

exploitation.” United States v. Daniels, 685 F.3d 1237, 1248 n. 13 (11th Cir. 

2012); see also id. at 1248–49 (“Although there is a general presumption that a 

knowing mens rea applies to every element in a statute, cases concerned with the 

protection of minors are within a special context, where that presumption is 

rebutted.”). 

Nor does the “serious constitutional doubts” dictum from X-Citement Video

support Ruggiero’s position that the absence of a knowledge-of-age requirement in 

§ 2251(a) is unconstitutional. The Supreme Court effectively foreclosed that 

extrapolation by distinguishing between the distribution prohibited by § 2252 and 

the production prohibited by § 2251(a). The Court pointed out that when Congress 

amended those two statutes, “the new bill retained the adverb ‘knowingly’ in 

§ 2252 while simultaneously deleting the word ‘knowingly’ from § 2251(a).” XCitement Video, 513 U.S. at 76, 115 S. Ct. at 472. As the Court explained:

The difference in congressional intent with respect to § 2251 versus 

§ 2252 reflects the reality that producers are more conveniently able 

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to ascertain the age of performers. It thus makes sense to impose the 

risk of error on producers. 

Id. at 76 n.5, 115 S. Ct. at 471 n.5. In light of that sharply drawn distinction 

between producers (who confront their victims personally) and distributors (who 

do not), Ruggiero cannot persuade us that the X-Citement Video Court meant to 

imply “serious constitutional doubts” about § 2251(a). See Fletcher, 634 F.3d at

403 (“[T]he production of child pornography may be analogized to those sex 

offenses, like statutory rape, that have traditionally been exempted from the 

common law presumption of mens rea.”); Gilmour v. Rogerson, 117 F.3d 368, 372 

(8th Cir. 1997) (“Unlike most distributors, the sexually exploitive producer deals 

directly with the child victim, like the statutory rapist who has traditionally been 

denied a mistake-of-age defense.”).

Ruggiero restates essentially the same argument in different ways, none of 

which is convincing. He states, for example, that the application of § 2251(a) 

violated his due process rights because the only “morally blameworthy” aspect of 

his conduct was K.M.’s age and he thought she was an adult. Setting aside 

Ruggiero’s take on morality, the Due Process Clause has rarely concerned itself 

with limiting Congress’s “wide latitude . . . to declare an offense and to exclude 

elements of knowledge and diligence from its definition.” Lambert v. California, 

355 U.S. 225, 228, 78 S. Ct. 240, 242 (1957); see also United States v. Balint, 258 

U.S. 250, 252, 42 S. Ct. 301, 302 (1922) (“[The] object[ion] that punishment of a 

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person for an act in violation of law when ignorant of the facts making it so, is an 

absence of due process of law. . . . [has been] considered and overruled.”). 

The Supreme Court did invalidate a criminal statute under the Due Process 

Clause in the Lambert case for failure to require knowledge that the conduct was 

prohibited by law. See 355 U.S. at 229–30, 78 S. Ct. at 243–44. That case

involved a city ordinance that imposed a registration requirement on convicted 

persons and did not permit evidence that the accused had no knowledge of the 

requirement. Id. at 226, 78 S. Ct. 242. The Court emphasized that the “mere 

failure to register” was “wholly passive” and “unlike the commission of acts, or the 

failure to act under circumstances that should alert the doer to the consequences of 

his deed.” Id. at 228, 78 S. Ct. at 243. It was for that reason the statute violated 

the defendant’s due process rights. Id. at 228–30, 78 S. Ct. at 242–44.

The registration statute at issue in Lambert is easily distinguished from the 

child pornography production statute at issue in this case. Taking photos of a 15-

year-old girl in sexually explicit positions is “the commission of an act,” and the 

failure to verify her age is “the failure to act under circumstances that should alert 

the doer to the consequences of his deed.” This case is a far cry from a case, like 

Lambert, where “a person, wholly passive and unaware of any wrongdoing, is 

brought to the bar of justice for condemnation in a criminal case.” Id. at 228, 78 

S. Ct. at 243.

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Ruggiero was convicted of the kind of exploitive conduct that Congress can 

regulate without requiring the government to prove that a defendant knew that his 

victim was underage. See United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir. 

2014) (stating that, in the context of statutory sex crimes, “federal courts uniformly 

have rejected claims that the Constitution requires the government to prove that a 

defendant knew that the victim was underage, or that such a defendant has a 

constitutional right to the defense that he made a reasonable mistake as to the 

victim’s age”) (alteration omitted) (quotation marks omitted). “[T]he use of 

children as subjects of pornographic materials is harmful to the physiological, 

emotional, and mental health of the child” and the prevention of it “constitutes a 

government objective of surpassing importance.” New York v. Ferber, 458 U.S. 

747, 757–58, 102 S. Ct. 3348, 3355 (1982). As the Eighth Circuit has explained in 

discussing the absence of an affirmative mistake-of-age defense for charges of 

producing child pornography:

[N]ot only is the [government’s] interest in banning the sexual 

exploitation of children very strong, but the mistake-of-age defense is 

directly contrary to that interest. . . . [T]he defense will typically be 

proved by evidence that the minor was a willing, perhaps deceitful 

participant in producing pornographic films and photos. The 

[government] may legitimately protect children from self-destructive 

decisions reflecting the youthful poor judgment that makes them, in 

the eyes of the law, beneath the age of consent. One can argue that 

sexually sophisticated [adolescents] do not need or even do not 

deserve such protection, but that is a legislative question. 

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Gilmour, 117 F.3d at 372 (quotation marks omitted).

7

Ruggiero also argues that because the photos of K.M. were not taken for 

any commercial purpose, § 2251(a) cannot be constitutionally applied to him.8

 

Though the argument is stated in due process terms, the real questions seem to be 

whether Congress intended § 2251(a) to reach non-commercial producers of child 

pornography like Ruggiero (a statutory interpretation question) and, if so, whether 

it can constitutionally do so (a Commerce Clause question). The answers are yes 

and yes. 

Ruggiero selectively cites bits and pieces of legislative history in an effort to 

show that Congress intended for § 2251(a) to curtail only commercial child 

pornography. About that, two things. First, the statutory language plainly does not 

limit § 2251(a) to commercial conduct. And where statutory language is plain, 

there is no room on the interpretation field for legislative history. United States v. 

 7 Gilmour rejected a First Amendment challenge to an Iowa state child pornography 

statute that is nearly identical to § 2251(a). 117 F.3d at 372.

8 The only item that had traveled in interstate or foreign commerce in this case was 

the China-manufactured cell phone he used to take the images, but Ruggiero does not 

appear to contend that § 2251(a) is unconstitutional as applied to him for lack of a 

sufficient nexus to foreign commerce. If he does, we reject that contention. See Gonzalez 

v. Raich, 545 U.S. 1, 9, 17, 125 S. Ct. 2195, 2201, 2205 (2005) (holding that Congress 

may regulate purely local intrastate activities if they are part of an “economic ‘class of 

activities’ that have a substantial effect on interstate commerce”); see also United States 

v. Forrest, 429 F.3d 73, 76–79 (4th Cir. 2005) (applying the Raich rationale to uphold a 

defendant’s convictions for production and possession of child pornography that itself 

had never crossed state lines, but that was produced using cameras that were 

manufactured outside the state); United States v. Jeronimo-Bautista, 425 F.3d 1266, 1273 

(10th Cir. 2005) (same).

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Gonzales, 520 U.S. 1, 6, 117 S. Ct. 1032, 1035 (1997) (“Given [a] straightforward 

statutory command, there is no reason to resort to legislative history.”); CBS Inc. v. 

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224 (11th Cir. 2001) (“Our 

decisions . . . mandate[e] that ambiguity in statutory language be shown before a 

court delves into legislative history.”); Harris v. Garner, 216 F.3d 970, 972 (11th 

Cir. 2000) (en banc) (“We begin our construction of [a statute] where courts should 

always begin the process of legislative interpretation, and where they often should 

end it as well, which is with the words of the statutory provision.”); United States 

v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“Where the language 

Congress chose to express its intent is clear and unambiguous, that is as far as we 

go to ascertain its intent because we must presume that Congress said what it 

meant and meant what it said.”).

Even if the statutory language were not plain, the legislative history of 

§ 2251(a) actually proves the opposite of Ruggiero’s position. As originally 

enacted, § 2251(a) provided that a defendant could be convicted only if he 

produced child pornography “for pecuniary profit.” The Protection of Children 

Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, § 2(a), 92 Stat. 7

(1978) (enacting 18 U.S.C. § 2253(3), later redesignated as 18 U.S.C. § 2255(3), 

which defined “producing” as “producing, directing, manufacturing, issuing, 

publishing, or advertising, for pecuniary profit”) (emphasis added). In 1984, 

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however, Congress amended the provision to delete the phrase “for pecuniary 

profit.” Child Protection Act of 1984, § 5(a)(5), Pub. L. No. 98-292, 98 Stat. 204

(1984). The House Report that accompanied the amendment explained that 

“[s]ince the harm to the child exists whether or not those who initiate or carry out 

the schemes are motivated by profit, the Subcommittee found a need to expand the 

coverage of the Act by deleting the commercial purpose requirement.” H.R. Rep. 

No. 98-536, at 2–3 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 493–94.

 And it is clear that Congress can regulate the interstate or foreign 

transportation of goods, including child pornography, regardless of whether there 

exists a commercial purpose. Cf. United States v. 12,200–Ft. Reels of Super 

8MM. Film, 413 U.S. 123, 125, 93 S. Ct. 2665, 2667 (1973) (holding that 

Congress can constitutionally prohibit the importation of obscene material from 

abroad, even if it is imported for personal use rather than for commercial 

distribution); Cleveland v. United States, 329 U.S. 14, 18, 67 S. Ct. 13, 15 (1946)

(upholding the Mann Act convictions of Mormon men who had arranged for 

women to travel to Utah to join them in polygamous marriages, on the grounds that 

the Mann Act, “while primarily aimed at the use of interstate commerce for the 

purposes of commercialized sex, is not restricted to that end”). Our sister circuits 

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have been of one voice in rejecting Commerce Clause challenges to § 2251(a),9

and we join the chorus. 

As a fallback argument, Ruggiero asserts that even if the government is not 

required to prove he knew the victim’s age, the Constitution affords him the right 

to introduce evidence that he made a reasonable mistake regarding her age. That 

fallback argument fails. Because knowledge of age is not an element of the crime, 

evidence of a lack of knowledge is irrelevant. And there is no right to introduce 

irrelevant evidence. Instead, “it is axiomatic that a defendant’s right to present a 

full defense does not entitle him to place before the jury irrelevant or otherwise 

inadmissible evidence.” United States v. Anderson, 872 F.2d 1508, 1519 (11th 

Cir. 1989); see also McCloud, 590 F.3d at 566 (rejecting defendant’s contention 

that it violated due process not to recognize an affirmative defense of lack of 

knowledge of age and holding that mistake-of-age evidence is irrelevant). The 

 9 See, e.g., United States v. Malloy, 568 F.3d 166, 179–81 (4th Cir. 2009) (rejecting 

an as-applied challenge to § 2251(a) based on the argument that Congress cannot regulate 

the production of child pornography that has a “‘null effect’ on the ‘national market for 

child pornography’”); United States v. Morales-De Jesús, 372 F.3d 6, 14–17 (1st Cir. 

2004) (rejecting both a facial and as-applied challenge to § 2251(a) based on the 

argument that Congress cannot regulate intrastate child pornography created exclusively 

for personal use); United States v. Sirois, 87 F.3d 34, 40 (2d Cir. 1996) (rejecting the 

argument that § 2251(a) is constitutionally suspect unless a “commercial purpose” 

requirement is engrafted onto it); see also United States v. McCalla, 545 F.3d 750, 755 

(9th Cir. 2008) (“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 

commercial purposes.”). 

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Fifth Amendment does not require courts to entertain a mistake-of-age-defense 

under § 2251(a).

Neither does the Sixth Amendment. The guarantee of a trial by jury 

requires, in relevant part, that a guilty verdict rest upon the “determination that the 

defendant is guilty of every element of the crime with which he is charged, beyond 

a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310,

2313 (1995). It does not require that the jury be allowed to hear evidence that is 

not relevant to any element of the crime or an affirmative defense.

In a final Hail Mary, Ruggiero contends that § 2251(a) is unconstitutionally 

vague. A statute is void for vagueness under the Fifth Amendment’s Due Process 

Clause if it “fails to provide a person of ordinary intelligence fair notice of what is 

prohibited, or is so standardless that it authorizes or encourages seriously 

discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 

S. Ct. 1830, 1845 (2008). We have no doubt that a person of ordinary intelligence 

would know, upon reading § 2251(a), that it prohibits persuading a 15-year-old to 

engage in sexually explicit conduct for the purpose of photographing her with a 

cell phone camera that has traveled in foreign commerce. And we have no reason 

to think that § 2251(a) authorizes or encourages seriously discriminatory 

enforcement. Ruggiero’s vagueness challenge, like his other challenges to 

§ 2251(a), flutters feebly and falls to the ground. 

Case: 13-14773 Date Filed: 06/30/2015 Page: 18 of 19 
19

AFFIRMED.

Case: 13-14773 Date Filed: 06/30/2015 Page: 19 of 19