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. e du/thir dc ir c uit_1999/288Filed October 20, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5522

UNITED STATES OF AMERICA

v.

JOSEPH RODIA Appellant

On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. No. 97-cr-00128) District Judge: Honorable Mary Little Cooper

Argued: July 12, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

(Filed October 20, 1999)

LISA VAN HOECK, ESQUIRE (ARGUED)

Assistant Federal Public Defender

22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609

Counsel for AppellantFAITH S. HOCHBERG, ESQUIRE

United States Attorney

NORMAN J. GROSS, ESQUIRE (ARGUED) Assistant United States Attorney Office of the United States Attorney

Mitchell S. Cohen Courthouse Fourth & Cooper Streets Camden, NJ 08101-2098

GEORGE S. LEONE, ESQUIRE Assistant United States Attorney Office of the United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal requires us once again to determine, in the wake of United States v. Lopez, 514 U.S. 549 (1995) , the constitutionality of a statute criminalizing an act ivity that is not directly linked to interstate commerce. The pre cise question before us is whether it was within Congres s's power under the Commerce Clause to enact 18 U.S.C. S 2252(a)(4)(B), which imposes criminal liability o n individuals who possess child pornography that has not itself traveled in interstate commerce as long as o ne of the materials from which the pornography was created--i n this case, Polaroid film--has so traveled.

Unlike the statute in question in Lopez, this statu te has a jurisdictional element or "hook"--that is, a clau se that purports to ensure that the law only covers activit y that

has a substantial effect on interstate commerce. We conclude, however, that the jurisdictional element in S 2252(a)(4)(B) does not achieve this goal. Accordi ngly, we must consider whether Congress could reasonably hav e believed that the intrastate possession of child po rnography that has been made using products that traveled int erstate

2has a substantial effect on the interstate commerce in child

pornography.

Although we are not without misgivings in view of t he breadth of the regulation at issue, we conclude tha t Congress rationally could have believed that intras tate possession of pornography has substantial effects o n interstate commerce. Intrastate possession likely f osters the possessor's demand for additional child pornography , some of which will come from interstate sources. Hence, discouraging the intrastate possession of pornograp hy will cause some of these child pornographers to leave th e realm of child pornography completely, which in turn will reduce the interstate demand for pornography--the very act ivity Congress wished to suppress through regulation. Thi s point is buttressed by the fact that Congress has histori cally regulated interstate commerce in child pornography, and that Congress hoped to close a remaining loophole i n the law by criminalizing intrastate possession of the s ame. We therefore will affirm the judgment of the District Court convicting Rodia under S 2252(a)(4)(B).

I. Facts and Procedural History

In 1991, local law enforcement officials in New Jer sey arrested Joseph Rodia and filed state charges again st him, including attempted aggravated sexual assault, enda ngering the welfare of a child, and manufacturing child pornography. After a New Jersey grand jury indicted Rodia on these charges, he fled and was eventually arrest ed in Ohio for sexually assaulting a child there. After p leading guilty to two counts of endangering the welfare of a child, he received a four-year sentence. While serving tha t sentence in Ohio, federal law enforcement officials brought a charge against him in the District Court for the District of New Jersey, alleging a violation of the Child Re storation and Penalties Act of 1990, 18 U.S.C. S 2252 ("CRPA" ), which criminalizes the possession of child pornogra phy when the pornography has traveled in interstate com merce or when the materials from which the pornography wa s created traveled in interstate commerce. The materi al creating the purported jurisdictional hook in this case was the Polaroid film with which Rodia's pornographic

3photographs were taken. It is undisputed that Polar oid film

has never been manufactured in New Jersey and that it was transported there via interstate commerce. Before trial, Rodia moved to dismiss the federal indictment on the ground that Congress had exceeded its powers under the Commerce Clause in enacting the se cond clause of S 2252(a)(4)(B), since that clause regula tes the purely intrastate possession of child pornography. The District Court denied the motion. Rodia later pled guilty, admitting that he knowingly possessed numerous photographs that constituted child pornography, inc luding three Polaroid photos of naked boys in various sexu ally explicit poses. The District Court accepted his ple a and sentenced him to a twenty-one month prison sentence

, followed by three years of supervised release with special

conditions.

Rodia did not preserve his right to appeal by enter ing a conditional guilty plea. See Fed. R. Crim. P. 11(a) (2). However, since the issue presented goes to the juri sdiction of the District Court, we have jurisdiction over hi s appeal. See United States v. Bishop, 66 F.3d 569, 572 n.1 ( 3d Cir. 1995). Our review of the statute's constitutionalit y is plenary, though we must respect Congress's ample discretion to determine the appropriate exercise of its Commerce Clause authority. See United States v. Ryb ar, 103 F.3d 273, 278 (3d Cir. 1996). In engaging in th is review, we must ascertain whether Congress "could rationally conclude that the regulated activity sub stantially affects interstate commerce." Id. Our inquiry is re stricted to whether any state of facts--either facts known or f acts that could reasonably be assumed--affords support for th at conclusion. See Pic-A-State PA, Inc. v. Reno, 76 F. 3d 1294, 1302 (3d Cir. 1996). If such a set of facts exists, we then must consider whether "the means chosen by Congress are reasonably adapted to the end permitted by the Constitution." Id. (quoting Hodel v. Virginia Surfa ce Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981)).

II. The Parties' Contentions

The version of 18 U.S.C. S 2252 that was in place i n 1991, when Rodia was arrested, provided in relevant part:

4(a) Any person who . . . (4) either . . . ( B) knowingly

possesses 3 or more books, magazines, period icals, films, video tapes, or other matter which co ntain any visual depiction that has been mailed, or ha s been shipped or transported in interstate or fore ign commerce, or which was produced using materi als which have been mailed or so shipped or tran sported, by any means including by computer, if -- .

. .

(i) the producing of such visual depiction involves the use of a minor engaging in sexually expl icit conduct; and (ii) such visual depiction is o f such conduct; shall be punished as provided in su bsection (b) of this section.

18 U.S.C. S 2252(a)(4)(B) (emphasis added).

Rodia was indicted under the second clause of subse ction (B) of the statute, which grounds jurisdiction sole ly on the fact that the materials from which the pornography was created were shipped in interstate commerce. This i s the only part of the statute he challenges; he does not contest the constitutionality of the clause regulating porn ography

that itself has traveled in interstate commerce. Th us, when we discuss S 2252, we are referring only to the cla use that prohibits the intrastate possession of child pornog raphy

made from materials that traveled interstate. In fo rmulating his constitutional challenge, Rodia relies heavily on United States v. Lopez, 514 U.S. 549 (1995). It is therefo re necessary to summarize that decision here.

A.

In Lopez, the Court struck down the Gun Free School Zones Act ("GFSZA") on the ground that Congress exc eeded its Commerce Clause power in passing the Act. The G FSZA made it a federal offense for any individual to kno wingly possess a firearm within a school zone. The Court d escribed the three broad categories of activity that Congres s may properly regulate--the channels of interstate comme rce, the instrumentalities of interstate commerce, and those

activities that have a substantial relation to inte rstate commerce--and noted that, in light of the activity regulated

5(gun possession), the GFSZA could be upheld, if at all, only

if it fell into the third category. See id. at 559.

In concluding that the statute was unconstitutional under the third category of regulation, the Court b ased its decision on two major grounds and a minor ground. I tfirst noted that the GFSZA, a criminal statute that had"n othing to do with `commerce' or any sort of economic enter prise," was not a "part of a larger regulation of economic activity, in which the regulatory scheme could be undercut un less the intrastate activity were regulated." Id. at 561 . Though the government (and four Justices in dissent) argue d that guns in school zones result in violent crime, which harms the educational environment and makes for less prod uctive citizens, the Court found the connection between gu n possession on school grounds and commercial transac tions too attenuated to say that such possession substant ially affected interstate commerce. The Court also reject ed the argument that the costs of crime impact the well-be ing of the nation as a whole, since it would follow from t hat argument that Congress could regulate all violent c rime.

Second, the Court noted that the GFSZA contained "n o jurisdictional element which would ensure, through caseby-case inquiry, that the firearm possession in que stion

affects interstate commerce." Id. at 561. The Court thus sought some guarantee that the behavior being regul ated

has a sufficient nexus to interstate commerce once the underlying facts of the case are proven. Finally, t hough the Court acknowledged that Congress is normally not re quired to make findings in order to legislate, it commente d on the dearth of congressional findings about the effect o f gun possession on interstate commerce, which left the C ourt unable to evaluate the reasonableness of Congress's judgment. See id. at 562-63.

B.

Rodia's argument is two-pronged. First, while acknowledging that S 2252 has a jurisdictional hook insofar as it requires that the materials from which the pornography has been created have traveled in inter state commerce, he contends that a statute cannot be uphe ld

6against a Commerce Clause challenge simply because it

contains a jurisdictional element. A jurisdictional element, as the term has been used in and after Lopez, refer s to a provision in a federal statute that requires the go vernment to establish specific facts justifying the exercise of federal jurisdiction in connection with any individual appl ication of the statute. See United States v. Harrington, 108 F .3d 1460, 1465 n.2 (D.C. Cir. 1997); see also Lopez, 514 U.S. at 561 (noting that the Gun-Free School Zones Act "has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that . . . have an explicit connection with or effect on interstate commerce"); United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998 ) (noting that a jurisdictional element expressly requires a nexus between the activity regulated and interstate comme rce, thus ensuring that Congress exercised its Commerce Clause power to reach a discrete set of criminal ac ts that have an explicit connection with or effect on inter state commerce). Rodia contends that the jurisdictional e lement in S 2252(a)(4)(B) fails to ensure that the activit y Congress wanted to regulate has an actual nexus to interstat e commerce, since it does not require that the final product regulated--child pornography--traveled in interstat e

commerce.

Second, Rodia submits that simple intrastate posses sion of child pornography does not fit into any of the t hree categories of interstate commerce that are proper s ubjects of congressional regulation: (i) channels of inters tate commerce; (ii) instrumentalities of interstate comm erce; and (iii) activities that substantially affect inte rstate commerce. For the reasons explained infra Part IV a nd n.3, categories (i) and (ii) are not at issue in this ca se. With regard to the third category, he claims victory on the grounds that possession of child pornography is not of an economic or commercial nature, relying on the statu te's legislative history in support of his claim. He emp hasizes this point by making a classic slippery slope argum ent: If "Congress can regulate the purely intrastate activi ty of Rodia simply because the blank film traveled inters tate, then there would be no activity beyond the power of Congress to regulate." Def. Br. at 6. If we uphold the statute, he forcefully argues, Congress could prohi bit the

7shoplifting in New Jersey of a candy bar made in

Pennsylvania, or the rape of a person who at one ti me has traveled interstate, simply because there is a triv ial interstate nexus to the intrastate activity being r egulated.

The government defends the statute on two grounds. First, it submits that S 2252(a)(4)(B)'s express ju risdictional requirement is sufficient to render the statute constitutional. Second, it contends that even if we deem the jurisdictional element insufficient to make the sta tute constitutional, Congress validly exercised its Comm erce Clause power by attempting to suppress the intrasta te demand for child pornography, which would in turn substantially affect interstate commerce by decreas ing the demand for the interstate supply of child pornograp hy.

In support of its position, the government points o ut that the three courts to decide this question, including two courts of appeals, have upheld the constitutionalit y of the statute. See United States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999); United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); United Stat es v. Winningham, 953 F. Supp. 1068, 1074 n.13 (D. Minn. 1996). We turn first to the jurisdictional element.

III. The Jurisdictional Element

As we have noted, the government contends that the presence of the jurisdictional element in S 2252 is by itself

sufficient to render the clause at issue constituti onal. However, in United States v. Bishop, 66 F.3d 569 (3 d Cir. 1995), we held:

The mere presence of a jurisdictional elemen t . . . does

not in and of itself insulate a statute from judicial scrutiny under the Commerce Clause, or rende r it per se constitutional. To the contrary, courts m ust inquire further to determine whether the jurisdictio nal element has the requisite nexus with interstate comm erce. We must, therefore, determine whether the juris dictional component in this case limits the statute to items that have an explicit connection with, or effect upon, interstate commerce.

8Id. at 585. We went on to make that determination,

concluding that the carjacking statute's jurisdicti onal element ensured that the car involved in the carjac king had an explicit connection with interstate commerce.

The government refers us to three later cases that, it contends, establish that we need look no further th an the jurisdictional element. In United States v. Rybar, 103 F.3d 273, 285 (3d Cir. 1996), we noted in passing that t he Supreme Court's decision in United States v. Bass, 404 U.S. 336 (1971), "merely signified that a statute's inclusion of a jurisdictional element is a condition sufficie nt to establish its validity under the Commerce Clause." However, we made this comment only in response to t he defendant's argument that the absence of a jurisdic tional element in Rybar was fatal to the statute involved in that case. Indeed, the statute at issue in Rybar contain ed no jurisdictional element, and thus this statement abo ut the effect of the presence of such an element was focus ed on the issue before us and is clearly dicta.1 In cont rast, our

___________________________________________________ ______________

1. In addition, we believe that Rybar overstates th e holding of Bass. In Bass, the Court had to interpret a gun possession s tatute, which applied to anyone "who receives, possesses, or transports i n commerce or affecting commerce any firearm." The government arg ued that "in commerce or affecting commerce" applied only to the verb "transports"; the Court rejected this reading, holding that "in c ommerce or affecting commerce" applied also to "possesses" and"receives. " The Court did not state that a formal, jurisdictional element would b e sufficient to render a statute constitutional. Rather, it merely enforce d the underlying constitutional requirement that the activity regula ted by federal statute

have some demonstrated nexus with interstate commer ce. A later Supreme Court case discussing Bass supports this re ading. In Scarborough v. United States, 431 U.S. 563 (1977), the Court described

Bass as follows:

Since "[a]bsent proof of some interstate com merce nexus in each case S 1202(a) dramatically intrudes upon tr aditional state

criminal jurisdiction," we were unwilling to conclude , without a "clearer statement of intention," that Congress meant to dispense entirely with a nexus requirement in individual cases

.

It was unnecessary in Bass for us to decide what would constitute an adequate nexus with commerce as the Gover nment had made no attempt to show any nexus at all.

9ruling in Bishop was directed toward the precise is sue we

address.

We also believe that Bishop is sound. A hard and fa st rule that the presence of a jurisdictional element automatically ensures the constitutionality of a st atute ignores the fact that the connection between the ac tivity regulated and the jurisdictional hook may be so att enuated as to fail to guarantee that the activity regulated has a substantial effect on interstate commerce. See Lope z, 514 U.S. at 561 (implying that jurisdictional elements are useful only when they can ensure, through a case-by-case i nquiry, that the regulated activity affects interstate comm erce); United States v. Jones, 178 F.3d 479, 480 (7th Cir. 1999) (noting that the jurisdictional element of S 844(i) , even if proven by the government, did not establish a subst antial connection to interstate commerce; and therefore, l ooking beyond the jurisdictional element to assess the sta tute's constitutionality); United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995) (illustrating that a statu torily imposed requirement of a jurisdictional nexus to in terstate commerce will not insulate the statute from judicia l review). We discuss in the margin the other post-Bishop case s on which the government relies.2

___________________________________________________ ______________

Id. at 568 (citations omitted). It is a big leap fr om Bass's specific holding

--that the Court would read the statute in such a w ay as to ensure that the government had to prove a nexus between the gun at issue and interstate commerce--to the broad proposition that a jurisdictional element will always guarantee a statute's constitut ionality.

2. The government reads United States v. Gaydos, 10 8 F.3d 505, 508 (3d Cir. 1997), to stand for the proposition that the s imple presence of a jurisdictional element rendered the statute at issu e constitutional. There, however, the panel simply concluded that the jurisd ictional element contained in the federal arson statute, 18 U.S.C.S 844(i), ensured that the statute only applied to arson that substantiall y affected interstate commerce. The government also relies on United Stat es v. Gateward, 84 F.3d 670 (3d Cir. 1996), which further explicated B ass and Scarborough. However, in Gateward, we did no more than conclude that the specific jurisdictional element in the case adequately perfo rmed the function of guaranteeing the nexus between firearm possession a nd commerce. The panel stated:

10In this case, the jurisdictional element--the requi rement

that precursor materials like film or cameras moved in interstate commerce--is only tenuously related to t he ultimate activity regulated: intrastate possession of child pornography. A jurisdictional element is only suffi cient to ensure a statute's constitutionality when the eleme nt either limits the regulation to interstate activity or ens ures that the intrastate activity to be regulated falls withi n one of the three categories of congressional power. See Bishop , 66 F.3d at 594 (Becker, J., dissenting); see also Unit ed States v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) ("[I]n Lopez, the Court simply did not state or imply that all crimin al statutes must have such an element, or that all sta tutes with such an element would be constitutional, or th at any statute without such an element is per se unconstitutional."); Andrew St. Laurent, Reconstitu ting United States v. Lopez: Another Look at Federal Cri minal Law, 31 COLUM. J. L. & SOC. PROBS. 61, 112 (1998) ( "A purely nominal jurisdictional requirement, that som e entity or object involved in the crime be drawn from inter state commerce, does nothing to prevent the shifting of[t he federal/state] balance in favor of the federal gove rnment. As has been amply demonstrated, virtually all criminal actions in the United States involve the use of some object that has passed through interstate commerce.").

As a practical matter, the limiting jurisdictional factor is almost useless here, since all but the most self-su fficient child pornographers will rely on film, cameras, or chemicals

that traveled in interstate commerce and will there fore fall within the sweep of the statute. At all events, it is at least doubtful in this case that the jurisdictional eleme nt adequately performs the function of guaranteeing th at the final product regulated substantially affects inter state

___________________________________________________ ______________

We do not understand Lopez to undercut the B ass/Scarborough proposition that the jurisdictional element [which required that

the gun have been possessed `in or affecting com merce'] keeps the felon

firearm law well inside the constitutional f ringes of the Commerce

Clause.

84 F.3d at 671.

11commerce. Because we will affirm the statute on oth er

grounds, we proceed to examine the nexus between interstate commerce and the activity regulated.

IV. Does Intrastate Possession of Child Pornography Affect

Interstate Commerce?

As discussed above, see supra Part II.A., the Supre me Court has identified three broad categories of acti vity that Congress can regulate using its commerce power: (i) the channels of interstate commerce; (ii) instrumentali ties of interstate commerce; and (iii) those activities hav ing a

substantial relation to interstate commerce. See Lo pez, 514 U.S. at 559. Neither of the parties argues that cat egory (i) is at issue. The government contends that we should analyze S 2252 under categories (ii) and (iii). How ever, our description of "instrumentalities" of interstate co mmerce in Bishop makes clear that we are not confronted with the congressional regulation of such instrumentalities in this case.3 We therefore turn to category (iii) and to t he heart of

___________________________________________________ ______________

3. In Bishop, we stated:

Instrumentalities differ from other objects that affect interstate commerce because they are used as a means of transporting goods and people across state lines. . . . It woul d be anomalous, therefore, to recognize [trains, planes, and highways a s] categories of instrumentalities but to suggest that the si milarly mobile

automobile is not also an instrumentality of interstate commerce.

66 F.3d at 588. Though the dissent disagreed with t hat conclusion, it, too, emphasized that "courts have, to date, appropr iately limited [category two's] application to congressional regul ation of instrumentalities actually engaged in interstate co mmerce, or objects such as railcars . . . , which are integrally relat ed to an interstate commerce network." Id. at 597 (Becker, J., dissenti ng); see also Overstreet v. North Shore Corp., 318 U.S. 125 (1943 ) (treating a bridge as an instrumentality); Shreveport Rate Cases, 234 U.S . 342 (1914) (interstate rail carriers); Southern R.R. Co. v. Un ited States, 222 U.S.

20 (1911) (railcars). Thus, category (ii) is inapt, an d we will consider the statute only under category (iii), referring to the relevant inquiry in

this case as whether it was reasonable for Congress to b elieve that the behavior regulated substantially affects interstate commerce. See United States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cer t. denied, 119 S. Ct.

12the matter: whether Congress had a rational basis f or

believing that the intrastate possession of pornogr aphy has

a substantial effect on interstate commerce. We ana lyze this question through the prism of Wickard v. Filbu rn, 317 U.S. 111 (1942), and its progeny. We also consider the relevance of the fact that Congress has long regula ted interstate commerce in child pornography, and that, in enacting the subsection of S 2252 at issue here, Co ngress was seeking to close a loophole in that statute so as to better achieve its goal. After discussing "substant ial effect," we will address the reasonableness of Congress's ch osen means as a way to achieve its desired goals.

A.

There is no dispute about the veritable tautology t hat interstate trafficking in child pornography has an effect on interstate commerce. Nevertheless, a brief summary of the legislative history of S 2252, in which congression al findings explicated the role of child pornography in interst ate commerce, offers an important background to the ult imate issue we must decide: whether Congress could have believed that the intrastate possession of pornogra phy substantially affects interstate commerce. With a c lear understanding of the role child pornography plays i n interstate commerce, it is easier to comprehend bot h Congress's efforts to regulate the industry and its subsequent attempt in 1990 to close a loophole in t hose regulations by enacting the clause of S 2252 that i s at issue here. We discuss these findings even though they we re not made in direct support of the 1990 amendments, for reasons set forth in the margin.4

___________________________________________________ ______________

806 (1999) (same); United States v. Robinson, 137 F .3d 652 (1st Cir. 1998) (analyzing and upholding constitutionality of S 2252 under category (iii)); but see United States v. Winningha m, 953 F. Supp. 1068, 1074 n.13 (D. Minn. 1996) (finding S 2252 constitut ional under category (ii)).

4. Despite the fact that the findings contained in the extensive legislative history of the statute were not made in relation to the 1990 amendments to S 2252, we think that, under Supreme Court and T hird Circuit

13In 1978, the Senate Report accompanying the passage of

the original Protection of Children Against Sexual Exploitation Act (the precursor to the CRPA) stated :

There is a substantial amount of trafficking in the United States today in pornographic material s [of children] . . . . The hearings and staff inv estigations . . . have led us to the following conclusio ns: that child pornography and child prostitution have beco me highly organized, multimillion dollar industries th at operate on a nationwide scale [and] that such prosti tution and the sale and distribution of such pornograph ic

materials are carried on to a substantial ex tent through the mails and other instrumentalitie s of interstate and foreign commerce.

S. Rep. No. 95-438, at ___ (1977), reprinted in 197 8 U.S.C.C.A.N. 70, ___. A 1986 amendment to the Act included legislative findings that stated: "[C]hild exploitation has become a multi-million dollar indu stry, infiltrated and operated by elements of organized c rime, and by a nationwide network of individuals openly advertising their desire to exploit children." Pub. L. No. 99- 591, 100 Stat. 3341-74 (1986). A 1988 amendment, wh ich broadened S 2252(a)(1) to encompass the transmissio n by computer of child pornography in interstate commerc e, highlights the fact that child pornography had begu n to travel in interstate commerce by yet another means, emphasizing the increasingly commercial nature of c hild pornography.

Congress's conclusion that a substantial interstate market in child pornography exists seems an eminent ly

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precedent, we should consider these congressionalfi ndings as we review the statute's constitutionality. See Maryland v. Wi rtz, 392 U.S. 183, 190 n.12 (1968) (holding that where Congress had earlie r passed related legislation with relevant findings, subsequent legi slation was "presumably based on similar findings and purposes with respect to the areas newly covered"); Rybar, 103 F.3d at 279-81 (c onsidering legislative history unrelated to the specific provision at issu e in that case and relying on the "history of the legislative history" of federal gun control

to illustrate the link between the behavior regulated and its effect on
commerce).

14reasonable one. But since the statutory subsection at issue

in this case regulates purely intrastate possession of child pornography, we must explore the relationship betwe en intrastate possession of child pornography and inte rstate commerce in child pornography.

B.

In the wake of the Interstate Commerce Act and the Sherman Antitrust Act, which ushered in a new era o f federal regulation, the Supreme Court subjected law s passed pursuant to the Commerce Clause to a "direct/indirect" test, which allowed Congress only to regulate activities that directly affected intersta te commerce. See A.L.A. Schechter Poultry Corp. v. Uni ted States, 295 U.S. 495, 546 (1935). However, it soon became apparent that, if the Commerce Clause were read to forbid Congress from regulating anything but those goods t hat actually traveled (and those commercial activities that actually took place) between states, Congress's att empts to regulate interstate commerce would be severely hind ered because some local activities or goods are so inter twined with interstate commerce that it is necessary to co ntrol the local behavior to ensure the efficacy of interstate regulation. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).

In Wickard v. Filburn, the Supreme Court confronted this problem head on. Filburn, a farmer, sought a declar ation that the Agricultural Adjustment Act, which imposed penalties on crops produced in excess of the Act's quotas, was unconstitutional. Filburn alleged that Congress had exceeded its Commerce Clause power in enacting a st atute that extended federal regulation to wheat productio n that was intended not for commerce but only for personal consumption on his farm. See 317 U.S. at 118. The C ourt held that Congress had the authority to regulate si ngular instances of intrastate activity when such events, taken in the aggregate, might ultimately have a substantial effect on interstate commerce. See id. at 125 ("[E]ven if app ellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be rea ched by

15Congress if it exerts a substantial economic effect on

interstate commerce."); see also Rybar, 103 F.3d at 283.

Since that time, the Court has repeatedly affirmed that the Commerce power extends to

those activities intrastate which so affect interstate commerce, or the exertion of the power of Co ngress over it, as to make regulation of them appro priate means to the attainment of a legitimate end, the effective execution of the granted power to regulate

interstate commerce.

Hodel, 452 U.S. at 277 (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)). Lo pez teaches, however, that the Wickard line of cases "m ay not be extended so as to embrace effects upon interstat e commerce so indirect and remote that to embrace the m, in view of our complex society, would effectually obli terate the

distinction between what is national and what is lo cal and create a completely centralized government." Lopez, 514

U.S. at 556-57.

In Rybar, we relied on Wickard's reasoning to rejec t a Commerce Clause challenge to 18 U.S.C. S 922(o), wh ich makes it unlawful "for any person to transfer or po ssess a machinegun." The defendant, a machine gun owner, ar gued that the statute failed the "substantially affects" test, since it governed purely intrastate possession of machine guns. See Rybar, 103 F.3d at 277-78. After reviewing the legislative history of gun control, we concluded th at Congress might well have contemplated that the regu lated activity of machine gun possession, when occurring in the aggregate, substantially affected commerce, and tha t by instituting a "demand-side measure to lessen the st imulus that prospective acquisition would have on the comm erce in machine guns," Congress did not exceed the limits o f the

Commerce Clause. Id. at 283.

In other words, it was permissible for Congress to attempt to reduce the demand for machine guns, even by regulating purely intrastate behavior, because the effect of that reduction in intrastate demand might well be t o limit the flow of those weapons into states, thus reducin g the interstate commerce in those weapons. See also Unit ed

16States v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998)

(concluding that S 922(o) "is a reasonable measure for choking off the traffic in machine guns, which may be constricted on the supply side through prohibition of transfers as well as on the demand side by criminal izing possession"). We acknowledged a similar principle i n Bishop, where we stated, "[I]f a criminal activity is rationally

believed to be one of the conduits of a nationwide and international pipeline of illegal activity, Congres s may justifiably step in and regulate that activity alth ough it is wholly intrastate." 66 F.3d at 585. Even more to th e point is Robinson, a case factually indistinguishable fro m Rodia's,

where the First Circuit considered market demands w hen it

held:

By outlawing the purely intrastate possessio n of child pornography in S 2252(a)(4)(B), Congress can curb the

nationwide demand for these materials. We be lieve that such possession, "through repetition elsewhe re," helps to create and sustain a market for sexually explicit materials depicting minors.

137 F.3d at 656 (quoting Lopez, 514 U.S. at 567).

C.

There is a subtle transformation at work here. In Wickard, the goods at issue--the wheat produced and consumed by the farmer--were being substituted for the interstate wheat that the statute attempted to regu late. The supply and demand analysis there, which resulted in the conclusion that intrastate growing of wheat had a

substantial effect on the interstate market in whea t, required few assumptions: home-grown wheat acts as a direct substitute for wheat purchased in commerce, including interstate commerce. However, as the case s just cited indicate, courts often have adopted Wickard's generic principle--that intrastate activity, if repeated, m ay substantially affect interstate commerce--in situat ions that are economically distinct from Wickard and that req uire a greater number of assumptions before the connection between intrastate and interstate activity becomes clear. For instance, many courts have applied the Wickard

17principle to criminal statutes, concluding that sup pressing

the intrastate demand for a good (for example, by criminalizing possession of guns or drugs) would ha ve a substantial impact on interstate commerce by affect ing the supply of that good. See Franklyn, 157 F.3d at 96; Proyect v. United States, 101 F.3d 11, 13-14 & n.1 (2d Cir. 1996); Bishop, 66 F.3d at 584-85.

In many cases, this will be a reasonable assumption . We note, however, that the latter economic model is di fferent from Wickard's substitution analysis, a fact that m any courts have glossed over. In addition, a number of courts have applied Wickard's aggregation concept to all a ctivities, economic and non-economic, without acknowledging"th at Lopez approvingly discussed the aggregation princip le only in conjunction with economic activity." United Stat es v. Hickman, 179 F.3d 230, 238 (5th Cir. 1999) (per cur iam) (Higginbotham, J., dissenting). Nevertheless, while there may not be a precise analytical fit between substit ution situations like Wickard and supply-affecting situat ions like the one at issue here, the weight of authority has assumed that Wickard's generic principle may be applied acr oss economic frameworks, to both criminal and civil regulations, so long as there is a strong nexus bet ween the intrastate and interstate activity. We so reasoned in Rybar,

and will do the same here.

D.

In this case, we think that Congress could have rat ionally reasoned as follows: Some pornographers manufacture

, possess, and use child pornography exclusively with in the boundaries of a state, and often only within the bo undaries of their own property. It is unrealistic to think t hat those pornographers will be content with their own supply , hence they will likely wish to explore new or additional pornographic photographs of children. Many of those pornographers will look to the interstate market as a source of new material, whether through mail order catalog s or through the Internet. Therefore, the possession of "homegrown" pornography may well stimulate a furthe r interest in pornography that immediately or eventua lly animates demand for interstate pornography. It is a lso

18reasonable to believe the related proposition that

discouraging the intrastate possession of pornograp hy will cause some of these child pornographers to leave th e realm of child pornography completely, which in turn will reduce the interstate demand for pornography.5

Another way to describe the nexus between intrastat e and interstate activity here is in terms of the not ion of addiction, which is explicated in the legislative h istory accompanying the 1996 amendments to S 2252. 6 The Senate Report stated that

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5. Congress also reasonably could have believed tha t the clause at issue would affect the supply side of the child pornograp hy market. Congress found that many producers of child pornography ship ped their end product interstate. See S. Rep. No. 95-438, at ___ (1977), reprinted in 1978 U.S.C.C.A.N. 70, ___ (finding that child porno graphy had become a highly organized, multimillion dollar industry that operated on a

nationwide scale and that the sale and distribution of such pornographic

materials were carried on to a substantial extent t hrough the mails and other instrumentalities of interstate commerce). Gi ven that conclusion, Congress could have believed that before the 1990 a mendments, commercial manufacturers of pornography were insuff iciently deterred from making and then selling their products interst ate, since the only stage at which their operation was illegal was at t he selling stage. By making it illegal to possess pornography manufactur ed from materials that passed interstate, even when the pornography i tself had not passed interstate, Congress made it easier for law enforce ment officials to stem the flow of manufactured--but not yet distributed-- pornography, thus curbing the supply of child pornography at its sour ce, before it was

released into the interstate market. While this rat ionale supports the purpose behind S 2252(a)(4)(B), we do not rely on i t because such manufacturers are covered by another part of S 2252 --to wit, S 2252(a)(3)(B), which makes it illegal knowingly t o sell or to possess

with intent to sell child pornography that has passed in interstate commerce or that has been produced using materials that have traveled in

interstate commerce. We mention this to illustrate that demand-side measures often have supply-side effects as well.

6. As we discussed supra n.4, we will consider legi slative history relating to S 2252, even if that history was not developed f or the specific amendment to the statute at issue here. Though the use of subsequent legislative history is often disfavored as a method of determining an earlier Congress's legislative intent, see Chapman v. United States, 500 U.S. 453, 464 n.4 (1991), courts have occasionally found such legislative

19prohibiting the possession and viewing of ch ild

pornography will encourage the possessors of such material to rid themselves of or destroy the material, thereby helping to protect the victims of ch ild pornography and to eliminate the market for the sexual exploitative use of children.

S. Rep. No. 104-358, at ___ (1996), reprinted at 19 96 WL 506545. That report further explained the addictive nature of pornography: "[P]ornography `is an addiction tha t escalates, requiring more graphic or violent materi al for arousal.' . . . [T]he use of child pornography in t ime desensitizes the viewer . . . [and the user] escala tes to more

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history useful. See Sykes v. Columbus & Greenville Ry., 117 F.3d 287, 293-94 (5th Cir. 1997) ("Although a committee repor t written with regard to a subsequent enactment is not legislative histor y with regard to a previously enacted statute, it is entitled to some consideration as a secondarily authoritative expression of expert opin ion."); see also Strickland v. Commissioner, Maine Dep't of Human Se rvs., 48 F.3d 12, 18 (1st Cir. 1995) ("We conclude that the value, if an y, of such postenactment materials should be decided case by case. "). Where, as here, Congress's subsequent fact-finding supplements, rat her than conflicts with, its earlier statements; where we are not usin g later congressional statements as a way to interpret earlier language b ut rather as evidence of the kind of research the 1990 Congress had befor e it; and where the later fact-finding was made as part of an overall e xplanation of the purpose behind the statute rather than in reference to one particular subsection thereof, we think that subsequent fact-f inding can be considered, though not given a large role, in the r ational basis

determination.

Even if we chose not to consider the subsequent his tory in our analysis of what facts Congress had before it in 19 90, the subsequent history would be material for a quite different rea son. To the extent that the 1996 legislative history sets out a rational ex planation for why Congress might have believed that restricting intra state pornography

made from interstate materials would diminish the d emand for interstate pornography, we may consider the statement not as s ubsequent legislative history but merely as evidence that the re could be a rational basis for this belief. See Pic-A-State PA, Inc. v. Reno, 76 F.3d 1294,

1302 (3d Cir. 1996) (noting that in Commerce Clause chal lenges, the court's inquiry "must be restricted to the issue of whether any state of facts either known or which could reasonably be assumed a ffords support for it").

20deviant material." Id. at ___ (noting also that "th e existence

of and traffic in child pornographic images . . . i nflames the desires of . . . child pornographers who prey on ch ildren, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation o f

actual children who are victimized as a result of t he existence and use of these materials").

We think that this common sense understanding of th e demand-side forces we have described supra helps to demonstrate the strong nexus between the intrastate possession of and the interstate market in child pornography.7 We believe that this nexus provides a limiting principle of the type sought in Lopez , se e 514 U.S. at 556-57, 564-65, for the nexus present here will not be present in criminal regulations that attempt to lim it or ban behavior that does not involve an exchange of goods , such as murder or assault. This limit is particularly im portant in the criminal context, which is an area that traditi onally has been regulated by the states. For these reasons, we

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7. See also United States v. Cardoza, 129 F.3d 6, 1 2 (1st Cir. 1997), decided in the context of the Youth Handgun Safety Act ("YHSA"), which prohibits the intrastate sale, transfer, delivery, and possession of handguns to and by juveniles, where the Court of Ap peals noted:

[W]e think the possessory prong of the YHSA . . . is `an essential part of a larger regulation of economic acti vity, in which the regulatory scheme could be undercut unless t he intrastate activity were regulated.' This is so because the YHSA was designed expressly to `stop[ ] the commerce in handguns with ju veniles nationwide. . .

.' Part of this regulatory approach involves th e suppression of the demand for such handguns. The YHSA can be th us seen as criminalization of the two points where the prohibited commerce finds its nexus; the demand for the firearms (possession), and the sale or transfer designed to meet that deman d. The two prohibitions go hand in hand with one another. Invalidati on of one half of the equation would likely have deleterious effec ts on the efficacy of

the legislation.

(citations omitted) (alteration in original); see a lso United States v. Kenney, 91 F.3d 884, 890 (7th Cir. 1996) ("Permitti ng unregulated intrastate possessions and transfers of machine gun s. . . indirectly undermines, via a market theory, the effectiveness of the federal attempt to regulate interstate commerce in machine guns.").

21conclude that Congress rationally could have believ ed that

child pornography that did not itself travel in int erstate

commerce has a substantial effect on interstate com merce, and is thus a valid subject of regulation under the

Commerce Clause.

E.

We do not believe that the conclusion just reached supports the broad proposition that, since intrasta te possession of a good so often has a substantial eff ect on the interstate market in the same good, Congress is eff ectively entitled to regulate any intrastate activity involv ing a good when there is a larger interstate market for it. Th e presence of two additional factors limits our holding. First , because the problem of child pornography is one that has be en addressed by federal statutes for over twenty years

, S 2252(a)(4)(B) does not constitute a "sharp break" in the pattern of federal legislation of the kind that tro ubled the Court in Lopez. See 514 U.S. at 563.

In addition, as we demonstrate below the subsection of S 2252(a)(4)(B) at issue here, which serves to clos e a loophole left open by the original statute, plays a critical role in maintaining the effectiveness of the overal l statutory scheme, a factor that was absent in Lopez. See Lope z, 514 U.S. at 561 (noting that "S 922(q) is not an essent ial part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intr astate activity were regulated"); see also Pic-A-State, 76 F.3d at 1302-03 (holding that Congress could have concluded that the [Interstate Wage] amendment at issue was necess ary to effectuate the purposes of the original act, since the amendment closed an unforeseen loophole in that act ). In the case of child pornography, Congress has long re gulated interstate commerce in child pornography as a way t o abolish child pornography entirely, and the subsect ion of

the statute at issue here was added in 1990 because the effectiveness of that regulatory scheme was being u ndercut by the child pornographers who continued to manufac ture their own pornography intrastate.

Specifically, it may be difficult to ascertain whet her pornography found in an individual's home was produ ced

22by that individual, acquired from a friend intrasta te, or

purchased in interstate commerce. Like controlled substances, and unlike weapons that carry identifyi ng numbers, pornography may often be fungible. To the extent that one piece of child pornography is fungible wit h another, federal efforts to arrest users of pornogr aphy will be hindered by an inability to determine whether a particular piece of pornography has traveled inters tate or not. That is, child pornography cannot be effective ly regulated without federal control over both the int erstate and local versions of the activity. In our view, th is loopholeclosing purpose illuminates and supports the congre ssional perception of the probable effect of intrastate por nography possession on the demand for interstate child porno graphy. However, before finalizing our conclusions on the i ssue, we must address Rodia's argument that intrastate posse ssion of pornography is a non-commercial activity.

F.

In support of his argument that S 2252 is unconstitutional, Rodia points out that several pie ces of the statute's legislative history acknowledge that most child pornographers do not possess pornography for commer cial purposes, and that, as with the GFSZA invalidated i n Lopez, Congress therefore is attempting to regulate an activity that has no relation to commerce.

First, he invokes the 1984 amendments to the statut e, which, in the wake of the Supreme Court's decision in New York v. Ferber, 458 U.S. 747 (1982) (holding that c hild pornography is entitled to no First Amendment prote ction), eliminated the requirement that the child pornograp hy have been created "for the purpose of sale or distributi on for sale." The House Report noted:

Many of the individuals who distribute mater ials covered by 18 U.S.C. 2252 do so by gift or e xchange without any commercial motive and thus remai n outside the coverage of this provision. . . . Since the

harm to the child exists whether or not thos e who initiate or carry out the schemes are motiva ted by profit, the subcommittee found a need to exp and the

23coverage of the act by deleting the commerci al purpose

requirement.

H.R. Rep. No. 98-536, ___ (1983), reprinted in 1984 U.S.C.C.A.N. 492, ___. Second, the 1986 legislative history detailed that this change was made because "experie nce revealed that much if not most child pornography ma terial is distributed through an underground network of pedophiles who exchange the material on a non-comme rcial basis." H.R. Rep. No. 99-910, at ___ (1986), reprin ted in 1986 U.S.C.C.A.N. 5952, ____. Third, the Justice Department comments included in House Report 536 st ate:

Utilization of 18 U.S.C. 2252 has been inhib ited by the

fact that the statute covers the distributio n of child pornography only for commercial purposes. It is a fact, however, that many, perhaps even most, of th e individuals who distribute materials covered by 18 U.S.C. 2252 do so by trade or exchange, with out any commercial purpose and thereby avoid violati ng this provision. . . . Nevertheless, the harm to c hildren involved in child pornography schemes exists whether or not those who initiate or carry out these schemes have a profit motive or commercial purpose.

H.R. Rep. No. 98-536, at ___ (1983), reprinted in 1 984

U.S.C.C.A.N. at 502.

These findings illustrate that not all child pornog raphers produce pornography with the intent that it enter t he stream of commerce. Nevertheless, such congressiona l findings do not foreclose a conclusion that intrast ate possession of pornography affects interstate commer ce. Congress's findings that some child pornography is noncommercial do not undermine its findings that ch ild pornography is a multimillion dollar, nationwide in dustry. Rather, the former findings merely highlight that m any people participate in the industry, and that a larg e number of those involved are independent operators who cre ate child pornography for their own use and, perhaps, t he use of their acquaintances. Where, as here, a class of activities is regulated (the shipment or exchange of child pornography) and the class is within the reach of f ederal power, we cannot rely on the fact that some of the class is

24engaged in non-commercial activity to invalidate th e entire

statute. See Perez v. United States, 402 U.S. 146, 154 (1971) (noting that where Congress is appropriately regulating a class of activities, the courts have n o power to excise, as trivial, individual instances of the cla ss).

Moreover, as we noted in Bishop, Congress is not foreclosed from regulating an activity with links t o interstate commerce even though some people engagin g in that activity may not have a commercial motive. In Bishop, we explained, "While the [Department of Justice] re port notes that economic gain is not the only or even th e principal motive behind carjacking, the fact that a dditional motives exist is not relevant to our inquiry." 66 F .3d at 582 n.18. Indeed, Wickard embodies this principle since the wheat at issue there had been grown for personal consumption, not for sale; as discussed above, the Court upheld the statute, finding the intent of the wheat grower irrelevant. See 317 U.S. at 118 (upholding the stat ute even though it extended federal regulation "to [wheat] p roduction not intended in any part for commerce but wholly fo r consumption on the farm"). More recently, in discus sing

what "affects interstate commerce" means in the RIC O context, the Court noted, "An enterprise surely can have a detrimental influence on interstate or foreign comm erce without having its own profit-seeking motives." Nat ional Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 25 8 (1994).

Finally, many cases from this and other courts of a ppeals have made clear that the specific activity that Con gress is regulating need not itself be objectively commercia l, as long

as it has a substantial effect on commerce. See Bis hop, 66 F.3d at 581 (noting that Congress could have believ ed that it had to regulate carjacking, "whether or not it w as strictly `commercial' or `economic,' " as one aspect of its response to the national commercial problem of criminal auto th eft); see also National Ass'n of Home Builders v. Babbitt, 13 0 F.3d 1041, 1049 (D.C. Cir. 1997) ("A class of activities can substantially affect interstate commerce regardless of whether the activity at issue--in this case the tak ing of endangered species--is commercial or noncommercial. "), cert. denied, 118 S. Ct. 2340 (1998); United States v. Bongiorno, 106 F.3d 1027, 1031 (1st Cir. 1997) (not ing that

25the Court consistently has interpreted the Commerce

Clause "to include transactions that might strike a lay person as `noncommercial' ").

Therefore, the fact that a substantial portion of c hild pornographers possess pornography for non-commercia l purposes does not automatically place the activity outside the realm of congressional regulation, especially s ince the activity has an obvious commercial element as well.

V. Rationality of the Means-Ends Connection

The final step in our inquiry is to determine wheth er the means chosen by Congress are reasonably adapted to the ends permitted by the Constitution. See Hodel, 452 U.S. at

276. We believe that there is a rational connection between the regulatory means (punishing the intrastate poss ession of child pornography) and the asserted ends (prohib iting interstate commerce in child pornography and reduci ng the

inevitable harm to children that stems from their involvement in child pornography). See, e.g., Unite d States v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998) (findin g that prohibiting possession of machine guns was reasonab le means of freezing, and ultimately eliminating, the largely interstate market for them); United States v. Cardo za, 129 F.3d 6, 12 (1st Cir. 1997) (finding that Congress's decision to punish both the supply (sale or transfer) and de mand (possession) sides of the handgun market was a mean s reasonably calculated to achieve its end).

This is so even though Congress's means were not cr afted with ultimate precision. Before S 2252 was amended to include the subsection at issue here, it was costly for pornographers to traffic in pornography across stat e lines, though it was costless (at least under federal law) to manufacture and use pornography intrastate. Section 2252(a)(4)(B) made it as costly to engage in the la tter activity as in the former. Congress's amendment thu s would likely have had two effects. First, some pornographers would decide that the costs of contin uing to make and possess child pornography were too high, a nd those pornographers would leave the industry entire ly--a result Congress clearly intended. Second, a reasona ble

26pornographer might conclude that, after the enactme nt of

S 2252(a)(4)(B), he had no incentive to continue to act purely intrastate, since he was committing a crime whether he made or used pornography that had passed interst ate or that had remained intrastate. Thus, some "homegrown " pornographers might have turned to the interstate m arket, increasing the interstate demand for child pornogra phy.

We are troubled by the lack of express Congressiona l findings about the effect of intrastate possession of child pornography on interstate commerce. We acknowledge, however, that

[o]ur ability to imagine ways of redesigning the statute to advance one of Congress' ends does not re nder it irrational. . . . The history of congression al attempts to address the problem . . . provides sufficien t reason to defer to the legislative judgment that [the statute in question] is an appropriate answer.

Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 , 19 (1990) (quoting Minnesota v. Clover Leaf Creamery C o., 449 U.S. 456, 469 (1981)). More importantly, we are sat isfied-- in view of the teachings of Wickard's progeny, butt ressed by the fact that Congress has long legislated in this area and was conscious of the need to close a loophole in a statute governing interstate commerce--that S 2252(a)(4)(B) was a reasonable exercise of Congress's power under the Commerce Clause. The judgment of the District Court will

be affirmed.

27ROTH, Circuit Judge, concurring:

I write separately because, although I agree with t he majority that we should affirm Rodia's conviction, I do not agree with the separate analysis which the majority gives (1) to the jurisdictional element in Part III of it s opinion and (2) to the effect of child pornography on interstat e commerce in Part IV. I believe that both issues sho uld be considered together. Their interrelationship is hel pful in determining the constitutionality of the statute.

I do accept the majority's conclusion that the fact that a statute has a jurisdictional element may not be suf ficient in

and of itself to establish the statute's constituti onality. When, however, we are presented with a statute, suc h as the present one, which has been repeatedly held to cover conduct that affects interstate commerce, we must k eep the previous history in mind when we examine the jurisdictional element of an amendment to the statu te.

We are not in the present case plowing new ground, as was the situation in United States v. Lopez, 514 U. S. 549, 563 (1995), where there were no congressional findi ngs that the possession of guns in a school zone substantial ly affected interstate commerce. Id. Here, we do have legislative findings to aid judicial evaluation of the effect of child pornography on interstate commerce. Cf. Unite d States v. Rybar, 103 F.3d 273, 279 (3d Cir. 1996) (determining that "there are legislative findings t o aid judicial evaluation of the effect of machine guns o n interstate commerce.")

As the majority points out in Part IV, legislative history concerning predecessor and successor child pornogra phy statutes supports the reasonableness of Congress's

determination that a nexus exists between child pornography and interstate commerce. Because we hav e such a history, the jurisdictional element of S 225 2(a)(4)(B) should be examined with that history in mind. These legislative findings are relevant not only to the m ajority's analysis in Part IV of the effect of child pornogra phy on interstate commerce. They are also relevant to the evaluation of the jurisdictional element in Part II I because that jurisdictional element is directed at the same evil as

28the other provisions of the statute -- interstate t rafficking

in child pornography. I would defer to Congress's j udgment that the regulation of materials, such as blank Pol aroid film,1

that have been in the stream of interstate commerce , is integral to its ability to regulate the interstate trafficking in child pornography -- even in an instance when thatf ilm is used to create child pornography that is possessed

intrastate.

For the above reasons, in the context of the presen t case, I do not agree with the statement of the majority t hat "[a] jurisdictional element is only sufficient to ensure a statute's constitutionality when the element either limits th e regulation to interstate activity or ensures that t he intrastate activity to be regulated falls within on e of the three categories of congressional power. Slip Op. a t 11." I

believe the above statement is too limited. We cann ot examine the jurisdictional element in isolation. An additional factor in the analysis of whether the ju risdiction element limits the regulation to interstate activit y must be the nature of the underlying activity, here child pornography, and prior determinations of the effect that the activity in question has on interstate commerce.

As I have described above, I believe that the juris dictional element here does limit the regulation to activity affecting interstate commerce because legislative findings ha ve established the connection between child pornograph y and interstate commerce; the further requirement that t he material on which the pornography was produced have

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1. The essential components of child pornography ar e film and video. Without these basic components, pornographic images of children-- which even Rodia concedes Congress may regulate und er the Commerce Clause if transported interstate--could not be crea ted. Moreover, instant film, such as the Polaroid film at issue in this ca se, is particularly important to both possessors and manufacturers of p ornography; commercial processing of pornographic images places the creator of the pornography in great jeopardy of being reported to authorities by commercial developers. Thus, while Polaroid film ma y seem a relatively odd commodity for the federal government to regulat e, the onus for this anomaly lies upon those who manufacture and possess child pornography.

29moved in interstate commerce will be proved on a ca se by

case basis.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

30