1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-20-1999

United States v Rodia

Precedential or Non-Precedential:

Docket 98-5522

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Recommended Citation

"United States v Rodia" (1999). 1999 Decisions. Paper 288.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/288
Filed 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 Appellant 
 FAITH 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 activity that is 

not directly linked to interstate commerce. The precise 

question before us is whether it was within Congress's 

power under the Commerce Clause to enact 18 U.S.C. 

S 2252(a)(4)(B), which imposes criminal liability on 

individuals who possess child pornography that has not 

itself traveled in interstate commerce as long as one of the 

materials from which the pornography was created--in this 

case, Polaroid film--has so traveled. 

Unlike the statute in question in Lopez, this statute has 

a jurisdictional element or "hook"--that is, a clause that 

purports to ensure that the law only covers activity 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. Accordingly, we 

must consider whether Congress could reasonably have 

believed that the intrastate possession of child pornography 

that has been made using products that traveled interstate 

 2 
has a substantial effect on the interstate commerce in child 

pornography. 

Although we are not without misgivings in view of the 

breadth of the regulation at issue, we conclude that 

Congress rationally could have believed that intrastate 

possession of pornography has substantial effects on 

interstate commerce. Intrastate possession likely fosters the 

possessor's demand for additional child pornography, some 

of which will come from interstate sources. Hence, 

discouraging the intrastate possession of pornography will 

cause some of these child pornographers to leave the realm 

of child pornography completely, which in turn will reduce 

the interstate demand for pornography--the very activity 

Congress wished to suppress through regulation. This point 

is buttressed by the fact that Congress has historically 

regulated interstate commerce in child pornography, and 

that Congress hoped to close a remaining loophole in the 

law by criminalizing intrastate possession of the same. 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 Jersey 

arrested Joseph Rodia and filed state charges against him, 

including attempted aggravated sexual assault, endangering 

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 arrested in 

Ohio for sexually assaulting a child there. After pleading 

guilty to two counts of endangering the welfare of a child, 

he received a four-year sentence. While serving that 

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 Restoration 

and Penalties Act of 1990, 18 U.S.C. S 2252 ("CRPA"), 

which criminalizes the possession of child pornography 

when the pornography has traveled in interstate commerce 

or when the materials from which the pornography was 

created traveled in interstate commerce. The material 

creating the purported jurisdictional hook in this case was 

the Polaroid film with which Rodia's pornographic 

 3 
photographs were taken. It is undisputed that Polaroid 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 second 

clause of S 2252(a)(4)(B), since that clause regulates 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, including 

three Polaroid photos of naked boys in various sexually 

explicit poses. The District Court accepted his plea 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 entering a 

conditional guilty plea. See Fed. R. Crim. P. 11(a)(2). 

However, since the issue presented goes to the jurisdiction 

of the District Court, we have jurisdiction over his appeal. 

See United States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir. 

1995). Our review of the statute's constitutionality is 

plenary, though we must respect Congress's ample 

discretion to determine the appropriate exercise of its 

Commerce Clause authority. See United States v. Rybar, 

103 F.3d 273, 278 (3d Cir. 1996). In engaging in this 

review, we must ascertain whether Congress "could 

rationally conclude that the regulated activity substantially 

affects interstate commerce." Id. Our inquiry is restricted to 

whether any state of facts--either facts known or facts that 

could reasonably be assumed--affords support for that 

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 Surface 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 in 

1991, when Rodia was arrested, provided in relevant part: 

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

 possesses 3 or more books, magazines, periodicals, 

 films, video tapes, or other matter which contain any 

 visual depiction that has been mailed, or has been 

 shipped or transported in interstate or foreign 

 commerce, or which was produced using materials 

 which have been mailed or so shipped or transported, 

 by any means including by computer, if -- . . . 

 (i) the producing of such visual depiction involves 

 the use of a minor engaging in sexually explicit 

 conduct; and (ii) such visual depiction is of such 

 conduct; shall be punished as provided in subsection 

 (b) of this section. 

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

Rodia was indicted under the second clause of subsection 

(B) of the statute, which grounds jurisdiction solely on the 

fact that the materials from which the pornography was 

created were shipped in interstate commerce. This is the 

only part of the statute he challenges; he does not contest 

the constitutionality of the clause regulating pornography 

that itself has traveled in interstate commerce. Thus, when 

we discuss S 2252, we are referring only to the clause that 

prohibits the intrastate possession of child pornography 

made from materials that traveled interstate. In formulating 

his constitutional challenge, Rodia relies heavily on United 

States v. Lopez, 514 U.S. 549 (1995). It is therefore 

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 exceeded 

its Commerce Clause power in passing the Act. The GFSZA 

made it a federal offense for any individual to knowingly 

possess a firearm within a school zone. The Court described 

the three broad categories of activity that Congress may 

properly regulate--the channels of interstate commerce, the 

instrumentalities of interstate commerce, and those

activities that have a substantial relation to interstate 

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 based its 

decision on two major grounds and a minor ground. Itfirst 

noted that the GFSZA, a criminal statute that had"nothing 

to do with `commerce' or any sort of economic enterprise," 

was not a "part of a larger regulation of economic activity, 

in which the regulatory scheme could be undercut unless 

the intrastate activity were regulated." Id. at 561. Though 

the government (and four Justices in dissent) argued that 

guns in school zones result in violent crime, which harms 

the educational environment and makes for less productive 

citizens, the Court found the connection between gun 

possession on school grounds and commercial transactions 

too attenuated to say that such possession substantially 

affected interstate commerce. The Court also rejected the 

argument that the costs of crime impact the well-being of 

the nation as a whole, since it would follow from that 

argument that Congress could regulate all violent crime. 

Second, the Court noted that the GFSZA contained "no 

jurisdictional element which would ensure, through caseby-case inquiry, that the firearm possession in question 

affects interstate commerce." Id. at 561. The Court thus 

sought some guarantee that the behavior being regulated 

has a sufficient nexus to interstate commerce once the 

underlying facts of the case are proven. Finally, though the 

Court acknowledged that Congress is normally not required 

to make findings in order to legislate, it commented on the 

dearth of congressional findings about the effect of gun 

possession on interstate commerce, which left the Court 

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 interstate 

commerce, he contends that a statute cannot be upheld 

 6 
against a Commerce Clause challenge simply because it 

contains a jurisdictional element. A jurisdictional element, 

as the term has been used in and after Lopez, refers to a 

provision in a federal statute that requires the government 

to establish specific facts justifying the exercise of federal 

jurisdiction in connection with any individual application 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 commerce, 

thus ensuring that Congress exercised its Commerce 

Clause power to reach a discrete set of criminal acts that 

have an explicit connection with or effect on interstate 

commerce). Rodia contends that the jurisdictional element 

in S 2252(a)(4)(B) fails to ensure that the activity Congress 

wanted to regulate has an actual nexus to interstate 

commerce, since it does not require that the final product 

regulated--child pornography--traveled in interstate 

commerce. 

Second, Rodia submits that simple intrastate possession 

of child pornography does not fit into any of the three 

categories of interstate commerce that are proper subjects 

of congressional regulation: (i) channels of interstate 

commerce; (ii) instrumentalities of interstate commerce; 

and (iii) activities that substantially affect interstate 

commerce. For the reasons explained infra Part IV and n.3, 

categories (i) and (ii) are not at issue in this case. 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 statute's 

legislative history in support of his claim. He emphasizes 

this point by making a classic slippery slope argument: If 

"Congress can regulate the purely intrastate activity of 

Rodia simply because the blank film traveled interstate, 

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 prohibit the 

 7 
shoplifting in New Jersey of a candy bar made in 

Pennsylvania, or the rape of a person who at one time has 

traveled interstate, simply because there is a trivial 

interstate nexus to the intrastate activity being regulated. 

The government defends the statute on two grounds. 

First, it submits that S 2252(a)(4)(B)'s express jurisdictional 

requirement is sufficient to render the statute 

constitutional. Second, it contends that even if we deem the 

jurisdictional element insufficient to make the statute 

constitutional, Congress validly exercised its Commerce 

Clause power by attempting to suppress the intrastate 

demand for child pornography, which would in turn 

substantially affect interstate commerce by decreasing the 

demand for the interstate supply of child pornography. 

In support of its position, the government points out that 

the three courts to decide this question, including two 

courts of appeals, have upheld the constitutionality 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 States 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 constitutional. 

However, in United States v. Bishop, 66 F.3d 569 (3d Cir. 

1995), we held: 

 The mere presence of a jurisdictional element . . . does 

 not in and of itself insulate a statute from judicial 

 scrutiny under the Commerce Clause, or render it per 

 se constitutional. To the contrary, courts must inquire 

 further to determine whether the jurisdictional element 

 has the requisite nexus with interstate commerce. We 

 must, therefore, determine whether the jurisdictional 

 component in this case limits the statute to items that 

 have an explicit connection with, or effect upon, 

 interstate commerce. 

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

concluding that the carjacking statute's jurisdictional 

element ensured that the car involved in the carjacking 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 than the 

jurisdictional element. In United States v. Rybar, 103 F.3d 

273, 285 (3d Cir. 1996), we noted in passing that the 

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 sufficient to 

establish its validity under the Commerce Clause." 

However, we made this comment only in response to the 

defendant's argument that the absence of a jurisdictional 

element in Rybar was fatal to the statute involved in that 

case. Indeed, the statute at issue in Rybar contained no 

jurisdictional element, and thus this statement about the 

effect of the presence of such an element was focused on 

the issue before us and is clearly dicta.1 In contrast, our 

_________________________________________________________________ 

1. In addition, we believe that Rybar overstates the holding of Bass. In 

Bass, the Court had to interpret a gun possession statute, which applied 

to anyone "who receives, possesses, or transports in commerce or 

affecting commerce any firearm." The government argued that "in 

commerce or affecting commerce" applied only to the verb "transports"; 

the Court rejected this reading, holding that "in commerce or affecting 

commerce" applied also to "possesses" and"receives." The Court did not 

state that a formal, jurisdictional element would be sufficient to render 

a statute constitutional. Rather, it merely enforced the underlying 

constitutional requirement that the activity regulated by federal statute 

have some demonstrated nexus with interstate commerce. A later 

Supreme Court case discussing Bass supports this reading. In 

Scarborough v. United States, 431 U.S. 563 (1977), the Court described 

Bass as follows: 

 Since "[a]bsent proof of some interstate commerce nexus in each 

 case S 1202(a) dramatically intrudes upon traditional 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 Government had made no 

 attempt to show any nexus at all. 

 9 
ruling in Bishop was directed toward the precise issue we 

address. 

We also believe that Bishop is sound. A hard and fast 

rule that the presence of a jurisdictional element 

automatically ensures the constitutionality of a statute 

ignores the fact that the connection between the activity 

regulated and the jurisdictional hook may be so attenuated 

as to fail to guarantee that the activity regulated has a 

substantial effect on interstate commerce. See Lopez, 514 

U.S. at 561 (implying that jurisdictional elements are useful 

only when they can ensure, through a case-by-case inquiry, 

that the regulated activity affects interstate commerce); 

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 substantial 

connection to interstate commerce; and therefore, looking 

beyond the jurisdictional element to assess the statute's 

constitutionality); United States v. Pappadopoulos, 64 F.3d 

522, 527 (9th Cir. 1995) (illustrating that a statutorily 

imposed requirement of a jurisdictional nexus to interstate 

commerce will not insulate the statute from judicial review). 

We discuss in the margin the other post-Bishop cases on 

which the government relies.2 

_________________________________________________________________ 

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

holding 

--that the Court would read the statute in such a way 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 constitutionality. 

2. The government reads United States v. Gaydos, 108 F.3d 505, 508 (3d 

Cir. 1997), to stand for the proposition that the simple presence of a 

jurisdictional element rendered the statute at issue constitutional. 

There, 

however, the panel simply concluded that the jurisdictional element 

contained in the federal arson statute, 18 U.S.C.S 844(i), ensured that 

the statute only applied to arson that substantially affected interstate 

commerce. The government also relies on United States v. Gateward, 84 

F.3d 670 (3d Cir. 1996), which further explicated Bass and Scarborough. 

However, in Gateward, we did no more than conclude that the specific 

jurisdictional element in the case adequately performed the function of 

guaranteeing the nexus between firearm possession and commerce. The 

panel stated: 

 10 
In this case, the jurisdictional element--the requirement 

that precursor materials like film or cameras moved in 

interstate commerce--is only tenuously related to the 

ultimate activity regulated: intrastate possession of child 

pornography. A jurisdictional element is only sufficient to 

ensure a statute's constitutionality when the element either 

limits the regulation to interstate activity or ensures that 

the intrastate activity to be regulated falls within one of the 

three categories of congressional power. See Bishop, 66 

F.3d at 594 (Becker, J., dissenting); see also United States 

v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) ("[I]n Lopez, the 

Court simply did not state or imply that all criminal 

statutes must have such an element, or that all statutes 

with such an element would be constitutional, or that any 

statute without such an element is per se 

unconstitutional."); Andrew St. Laurent, Reconstituting 

United States v. Lopez: Another Look at Federal Criminal 

Law, 31 COLUM. J. L. & SOC. PROBS. 61, 112 (1998) ("A 

purely nominal jurisdictional requirement, that some entity 

or object involved in the crime be drawn from interstate 

commerce, does nothing to prevent the shifting of[the 

federal/state] balance in favor of the federal government. 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-sufficient 

child pornographers will rely on film, cameras, or chemicals 

that traveled in interstate commerce and will therefore fall 

within the sweep of the statute. At all events, it is at least 

doubtful in this case that the jurisdictional element 

adequately performs the function of guaranteeing that the 

final product regulated substantially affects interstate 

_________________________________________________________________ 

 We do not understand Lopez to undercut the Bass/Scarborough 

 proposition that the jurisdictional element [which required that 

the 

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

 firearm law well inside the constitutional fringes of the Commerce 

 Clause. 

84 F.3d at 671. 

 11 
commerce. Because we will affirm the statute on other 

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 Supreme 

Court has identified three broad categories of activity that 

Congress can regulate using its commerce power: (i) the 

channels of interstate commerce; (ii) instrumentalities of 

interstate commerce; and (iii) those activities having a 

substantial relation to interstate commerce. See Lopez, 514 

U.S. at 559. Neither of the parties argues that category (i) 

is at issue. The government contends that we should

analyze S 2252 under categories (ii) and (iii). However, our 

description of "instrumentalities" of interstate commerce 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 the 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 would be anomalous, 

therefore, 

 to recognize [trains, planes, and highways as] categories of 

 instrumentalities but to suggest that the similarly mobile 

automobile 

 is not also an instrumentality of interstate commerce. 

66 F.3d at 588. Though the dissent disagreed with that conclusion, it, 

too, emphasized that "courts have, to date, appropriately limited 

[category two's] application to congressional regulation of 

instrumentalities actually engaged in interstate commerce, or objects 

such as railcars . . . , which are integrally related to an interstate 

commerce network." Id. at 597 (Becker, J., dissenting); 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. United States, 222 U.S. 

20 

(1911) (railcars). Thus, category (ii) is inapt, and 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 believe that the 

behavior regulated substantially affects interstate commerce. See United 

States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cert. denied, 119 S. Ct. 

 12 
the matter: whether Congress had a rational basis for 

believing that the intrastate possession of pornography has 

a substantial effect on interstate commerce. We analyze 

this question through the prism of Wickard v. Filburn, 317 

U.S. 111 (1942), and its progeny. We also consider the 

relevance of the fact that Congress has long regulated 

interstate commerce in child pornography, and that, in 

enacting the subsection of S 2252 at issue here, Congress 

was seeking to close a loophole in that statute so as to 

better achieve its goal. After discussing "substantial effect," 

we will address the reasonableness of Congress's chosen 

means as a way to achieve its desired goals. 

A. 

There is no dispute about the veritable tautology that 

interstate trafficking in child pornography has an effect on 

interstate commerce. Nevertheless, a brief summary of the 

legislative history of S 2252, in which congressional findings 

explicated the role of child pornography in interstate 

commerce, offers an important background to the ultimate 

issue we must decide: whether Congress could have 

believed that the intrastate possession of pornography 

substantially affects interstate commerce. With a clear 

understanding of the role child pornography plays in 

interstate commerce, it is easier to comprehend both 

Congress's efforts to regulate the industry and its

subsequent attempt in 1990 to close a loophole in those 

regulations by enacting the clause of S 2252 that is at issue 

here. We discuss these findings even though they were 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 ofS 2252 under 

category (iii)); but see United States v. Winningham, 953 F. Supp. 1068, 

1074 n.13 (D. Minn. 1996) (finding S 2252 constitutional 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 Third Circuit 

 13 
In 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 materials [of 

 children] . . . . The hearings and staff investigations 

 . . . have led us to the following conclusions: that child 

 pornography and child prostitution have become highly 

 organized, multimillion dollar industries that operate 

 on a nationwide scale [and] that such prostitution and 

 the sale and distribution of such pornographic 

 materials are carried on to a substantial extent 

 through the mails and other instrumentalities of 

 interstate and foreign commerce. 

S. Rep. No. 95-438, at ___ (1977), reprinted in 1978 

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 industry, 

infiltrated and operated by elements of organized crime, 

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, which 

broadened S 2252(a)(1) to encompass the transmission by 

computer of child pornography in interstate commerce, 

highlights the fact that child pornography had begun to 

travel in interstate commerce by yet another means,

emphasizing the increasingly commercial nature of child 

pornography. 

Congress's conclusion that a substantial interstate

market in child pornography exists seems an eminently 

_________________________________________________________________ 

precedent, we should consider these congressionalfindings as we review 

the statute's constitutionality. See Maryland v. Wirtz, 392 U.S. 183, 190 

n.12 (1968) (holding that where Congress had earlier passed related 

legislation with relevant findings, subsequent legislation was 

"presumably based on similar findings and purposes with respect to the 

areas newly covered"); Rybar, 103 F.3d at 279-81 (considering legislative 

history unrelated to the specific provision at issue 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). 

 14 
reasonable one. But since the statutory subsection at issue 

in this case regulates purely intrastate possession of child 

pornography, we must explore the relationship between 

intrastate possession of child pornography and interstate 

commerce in child pornography. 

B. 

In the wake of the Interstate Commerce Act and the 

Sherman Antitrust Act, which ushered in a new era of 

federal regulation, the Supreme Court subjected laws 

passed pursuant to the Commerce Clause to a 

"direct/indirect" test, which allowed Congress only to 

regulate activities that directly affected interstate 

commerce. See A.L.A. Schechter Poultry Corp. v. United 

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 that 

actually traveled (and those commercial activities that 

actually took place) between states, Congress's attempts to 

regulate interstate commerce would be severely hindered 

because some local activities or goods are so intertwined 

with interstate commerce that it is necessary to control 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 declaration 

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 statute 

that extended federal regulation to wheat production that 

was intended not for commerce but only for personal

consumption on his farm. See 317 U.S. at 118. The Court 

held that Congress had the authority to regulate singular 

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 appellee's 

activity be local and though it may not be regarded as 

commerce, it may still, whatever its nature, be reached by 

 15 
Congress 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 Congress 

 over it, as to make regulation of them appropriate 

 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)). Lopez 

teaches, however, that the Wickard line of cases "may not 

be extended so as to embrace effects upon interstate 

commerce so indirect and remote that to embrace them, in 

view of our complex society, would effectually obliterate the 

distinction between what is national and what is local and 

create a completely centralized government." Lopez, 514 

U.S. at 556-57. 

In Rybar, we relied on Wickard's reasoning to reject a 

Commerce Clause challenge to 18 U.S.C. S 922(o), which 

makes it unlawful "for any person to transfer or possess a 

machinegun." The defendant, a machine gun owner, argued 

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 that 

Congress might well have contemplated that the regulated 

activity of machine gun possession, when occurring in the 

aggregate, substantially affected commerce, and that by 

instituting a "demand-side measure to lessen the stimulus 

that prospective acquisition would have on the commerce in 

machine guns," Congress did not exceed the limits of 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 to limit 

the flow of those weapons into states, thus reducing the 

interstate commerce in those weapons. See also United 

 16 
States 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 criminalizing 

possession"). We acknowledged a similar principle in 

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, Congress may 

justifiably step in and regulate that activity although it is 

wholly intrastate." 66 F.3d at 585. Even more to the point 

is Robinson, a case factually indistinguishable from Rodia's, 

where the First Circuit considered market demands when it 

held: 

 By outlawing the purely intrastate possession of child 

 pornography in S 2252(a)(4)(B), Congress can curb the 

 nationwide demand for these materials. We believe that 

 such possession, "through repetition elsewhere," 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 regulate. 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 wheat, 

required few assumptions: home-grown wheat acts as a 

direct substitute for wheat purchased in commerce, 

including interstate commerce. However, as the cases just 

cited indicate, courts often have adopted Wickard's generic 

principle--that intrastate activity, if repeated, may 

substantially affect interstate commerce--in situations that 

are economically distinct from Wickard and that require a 

greater number of assumptions before the connection

between intrastate and interstate activity becomes clear. 

For instance, many courts have applied the Wickard 

 17 
principle to criminal statutes, concluding that suppressing 

the intrastate demand for a good (for example, by 

criminalizing possession of guns or drugs) would have a 

substantial impact on interstate commerce by affecting 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 different 

from Wickard's substitution analysis, a fact that many 

courts have glossed over. In addition, a number of courts 

have applied Wickard's aggregation concept to all activities, 

economic and non-economic, without acknowledging"that 

Lopez approvingly discussed the aggregation principle only 

in conjunction with economic activity." United States v. 

Hickman, 179 F.3d 230, 238 (5th Cir. 1999) (per curiam) 

(Higginbotham, J., dissenting). Nevertheless, while there 

may not be a precise analytical fit between substitution 

situations like Wickard and supply-affecting situations like 

the one at issue here, the weight of authority has assumed 

that Wickard's generic principle may be applied across 

economic frameworks, to both criminal and civil 

regulations, so long as there is a strong nexus between 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 rationally 

reasoned as follows: Some pornographers manufacture, 

possess, and use child pornography exclusively within the 

boundaries of a state, and often only within the boundaries 

of their own property. It is unrealistic to think that 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 catalogs or 

through the Internet. Therefore, the possession of 

"homegrown" pornography may well stimulate a further 

interest in pornography that immediately or eventually 

animates demand for interstate pornography. It is also 

 18 
reasonable to believe the related proposition that 

discouraging the intrastate possession of pornography will 

cause some of these child pornographers to leave the realm 

of child pornography completely, which in turn will reduce 

the interstate demand for pornography.5 

Another way to describe the nexus between intrastate 

and interstate activity here is in terms of the notion of 

addiction, which is explicated in the legislative history 

accompanying the 1996 amendments to S 2252. 6 The 

Senate Report stated that 

_________________________________________________________________ 

5. Congress also reasonably could have believed that the clause at issue 

would affect the supply side of the child pornography market. Congress 

found that many producers of child pornography shipped 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 pornography 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 through the mails and 

other instrumentalities of interstate commerce). Given that conclusion, 

Congress could have believed that before the 1990 amendments, 

commercial manufacturers of pornography were insufficiently deterred 

from making and then selling their products interstate, since the only 

stage at which their operation was illegal was at the selling stage. By 

making it illegal to possess pornography manufactured from materials 

that passed interstate, even when the pornography itself had not passed 

interstate, Congress made it easier for law enforcement officials to stem 

the flow of manufactured--but not yet distributed--pornography, thus 

curbing the supply of child pornography at its source, before it was 

released into the interstate market. While this rationale supports the 

purpose behind S 2252(a)(4)(B), we do not rely on it because such 

manufacturers are covered by another part of S 2252--to wit, 

S 2252(a)(3)(B), which makes it illegal knowingly to 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 legislative history 

relating 

to S 2252, even if that history was not developed for 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 

 19 
 prohibiting the possession and viewing of child 

 pornography will encourage the possessors of such 

 material to rid themselves of or destroy the material, 

 thereby helping to protect the victims of child 

 pornography and to eliminate the market for the sexual 

 exploitative use of children. 

S. Rep. No. 104-358, at ___ (1996), reprinted at 1996 WL 

506545. That report further explained the addictive nature 

of pornography: "[P]ornography `is an addiction that 

escalates, requiring more graphic or violent material for 

arousal.' . . . [T]he use of child pornography in time 

desensitizes the viewer . . . [and the user] escalates to more 

_________________________________________________________________ 

history useful. See Sykes v. Columbus & Greenville Ry., 117 F.3d 287, 

293-94 (5th Cir. 1997) ("Although a committee report written with regard 

to a subsequent enactment is not legislative history with regard to a 

previously enacted statute, it is entitled to some consideration as a 

secondarily authoritative expression of expert opinion."); see also 

Strickland v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 18 

(1st Cir. 1995) ("We conclude that the value, if any, of such postenactment materials should be decided case by case."). Where, as here, 

Congress's subsequent fact-finding supplements, rather than conflicts 

with, its earlier statements; where we are not using later congressional 

statements as a way to interpret earlier language but rather as evidence 

of the kind of research the 1990 Congress had before it; and where the 

later fact-finding was made as part of an overall explanation of the 

purpose behind the statute rather than in reference to one particular 

subsection thereof, we think that subsequent fact-finding can be 

considered, though not given a large role, in the rational basis 

determination. 

Even if we chose not to consider the subsequent history in our 

analysis of what facts Congress had before it in 1990, the subsequent 

history would be material for a quite different reason. To the extent that 

the 1996 legislative history sets out a rational explanation for why 

Congress might have believed that restricting intrastate pornography 

made from interstate materials would diminish the demand for interstate 

pornography, we may consider the statement not as subsequent 

legislative history but merely as evidence that there 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 challenges, the court's 

inquiry "must be restricted to the issue of whether any state of facts 

either known or which could reasonably be assumed affords support for 

it"). 

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

of and traffic in child pornographic images . . . inflames the 

desires of . . . child pornographers who prey on children, 

thereby increasing the creation and distribution of child 

pornography and the sexual abuse and exploitation of 

actual children who are victimized as a result of the 

existence and use of these materials"). 

We think that this common sense understanding of the 

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 , see 514 U.S. 

at 556-57, 564-65, for the nexus present here will not be 

present in criminal regulations that attempt to limit or ban 

behavior that does not involve an exchange of goods, such 

as murder or assault. This limit is particularly important in 

the criminal context, which is an area that traditionally has 

been regulated by the states. For these reasons, we

_________________________________________________________________ 

7. See also United States v. Cardoza, 129 F.3d 6, 12 (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 Appeals noted: 

 [W]e think the possessory prong of the YHSA . . . is `an essential 

 part of a larger regulation of economic activity, in which the 

 regulatory scheme could be undercut unless the intrastate activity 

 were regulated.' This is so because the YHSA was designed expressly 

 to `stop[ ] the commerce in handguns with juveniles nationwide. . . 

.' 

 Part of this regulatory approach involves the suppression of the 

 demand for such handguns. The YHSA can be thus 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 demand. The two prohibitions 

 go hand in hand with one another. Invalidation of one half of the 

 equation would likely have deleterious effects on the efficacy of 

the 

 legislation. 

(citations omitted) (alteration in original); see also United States v. 

Kenney, 91 F.3d 884, 890 (7th Cir. 1996) ("Permitting unregulated 

intrastate possessions and transfers of machine guns. . . indirectly 

undermines, via a market theory, the effectiveness of the federal attempt 

to regulate interstate commerce in machine guns.").

 21 
conclude that Congress rationally could have believed that 

child pornography that did not itself travel in interstate 

commerce has a substantial effect on interstate commerce, 

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 intrastate 

possession of a good so often has a substantial effect on the 

interstate market in the same good, Congress is effectively 

entitled to regulate any intrastate activity involving a good 

when there is a larger interstate market for it. The presence 

of two additional factors limits our holding. First, because 

the problem of child pornography is one that has been 

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 troubled 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 close a 

loophole left open by the original statute, plays a critical 

role in maintaining the effectiveness of the overall statutory 

scheme, a factor that was absent in Lopez. See Lopez, 514 

U.S. at 561 (noting that "S 922(q) is not an essential part of 

a larger regulation of economic activity, in which the 

regulatory scheme could be undercut unless the intrastate 

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 necessary 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 regulated 

interstate commerce in child pornography as a way to 

abolish child pornography entirely, and the subsection of 

the statute at issue here was added in 1990 because the 

effectiveness of that regulatory scheme was being undercut 

by the child pornographers who continued to manufacture 

their own pornography intrastate. 

Specifically, it may be difficult to ascertain whether 

pornography found in an individual's home was produced 

 22 
by that individual, acquired from a friend intrastate, or 

purchased in interstate commerce. Like controlled 

substances, and unlike weapons that carry identifying 

numbers, pornography may often be fungible. To the extent 

that one piece of child pornography is fungible with 

another, federal efforts to arrest users of pornography will 

be hindered by an inability to determine whether a 

particular piece of pornography has traveled interstate or 

not. That is, child pornography cannot be effectively 

regulated without federal control over both the interstate 

and local versions of the activity. In our view, this loopholeclosing purpose illuminates and supports the congressional 

perception of the probable effect of intrastate pornography 

possession on the demand for interstate child pornography. 

However, before finalizing our conclusions on the issue, we 

must address Rodia's argument that intrastate possession 

of pornography is a non-commercial activity. 

F. 

In support of his argument that S 2252 is 

unconstitutional, Rodia points out that several pieces of the 

statute's legislative history acknowledge that most child 

pornographers do not possess pornography for commercial 

purposes, and that, as with the GFSZA invalidated in 

Lopez, Congress therefore is attempting to regulate an 

activity that has no relation to commerce. 

First, he invokes the 1984 amendments to the statute, 

which, in the wake of the Supreme Court's decision in New 

York v. Ferber, 458 U.S. 747 (1982) (holding that child 

pornography is entitled to no First Amendment protection), 

eliminated the requirement that the child pornography have 

been created "for the purpose of sale or distribution for 

sale." The House Report noted: 

 Many of the individuals who distribute materials 

 covered by 18 U.S.C. 2252 do so by gift or exchange 

 without any commercial motive and thus remain 

 outside the coverage of this provision. . . . Since 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 

 23 
 coverage of the act by deleting the commercial 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 "experience 

revealed that much if not most child pornography material 

is distributed through an underground network of 

pedophiles who exchange the material on a non-commercial 

basis." H.R. Rep. No. 99-910, at ___ (1986), reprinted in 

1986 U.S.C.C.A.N. 5952, ____. Third, the Justice 

Department comments included in House Report 536 state: 

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

 fact that the statute covers the distribution of child 

 pornography only for commercial purposes. It is a fact, 

 however, that many, perhaps even most, of the 

 individuals who distribute materials covered by 18 

 U.S.C. 2252 do so by trade or exchange, without any 

 commercial purpose and thereby avoid violating this 

 provision. . . . Nevertheless, the harm to children 

 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 1984 

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

These findings illustrate that not all child pornographers 

produce pornography with the intent that it enter the 

stream of commerce. Nevertheless, such congressional 

findings do not foreclose a conclusion that intrastate 

possession of pornography affects interstate commerce. 

Congress's findings that some child pornography is 

noncommercial do not undermine its findings that child 

pornography is a multimillion dollar, nationwide industry. 

Rather, the former findings merely highlight that many 

people participate in the industry, and that a large number 

of those involved are independent operators who create 

child pornography for their own use and, perhaps, the 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 federal 

power, we cannot rely on the fact that some of the class is 

 24 
engaged in non-commercial activity to invalidate the 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 no power to 

excise, as trivial, individual instances of the class). 

Moreover, as we noted in Bishop, Congress is not 

foreclosed from regulating an activity with links to 

interstate commerce even though some people engaging in 

that activity may not have a commercial motive. In Bishop, 

we explained, "While the [Department of Justice] report 

notes that economic gain is not the only or even the 

principal motive behind carjacking, the fact that additional 

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 statute even 

though it extended federal regulation "to [wheat] production 

not intended in any part for commerce but wholly for 

consumption on the farm"). More recently, in discussing 

what "affects interstate commerce" means in the RICO 

context, the Court noted, "An enterprise surely can have a 

detrimental influence on interstate or foreign commerce 

without having its own profit-seeking motives." National 

Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 258 (1994). 

Finally, many cases from this and other courts of appeals 

have made clear that the specific activity that Congress is 

regulating need not itself be objectively commercial, as long 

as it has a substantial effect on commerce. See Bishop, 66 

F.3d at 581 (noting that Congress could have believed that 

it had to regulate carjacking, "whether or not it was strictly 

`commercial' or `economic,' " as one aspect of its response to 

the national commercial problem of criminal auto theft); see 

also National Ass'n of Home Builders v. Babbitt, 130 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 taking 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) (noting that 

 25 
the 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 child 

pornographers possess pornography for non-commercial 

purposes does not automatically place the activity outside 

the realm of congressional regulation, especially since 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 whether 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 possession 

of child pornography) and the asserted ends (prohibiting 

interstate commerce in child pornography and reducing the 

inevitable harm to children that stems from their 

involvement in child pornography). See, e.g., United States 

v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998) (finding that 

prohibiting possession of machine guns was reasonable 

means of freezing, and ultimately eliminating, the largely 

interstate market for them); United States v. Cardoza, 129 

F.3d 6, 12 (1st Cir. 1997) (finding that Congress's decision 

to punish both the supply (sale or transfer) and demand 

(possession) sides of the handgun market was a means 

reasonably calculated to achieve its end). 

This is so even though Congress's means were not crafted 

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 state 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 latter 

activity as in the former. Congress's amendment thus 

would likely have had two effects. First, some 

pornographers would decide that the costs of continuing to 

make and possess child pornography were too high, and 

those pornographers would leave the industry entirely--a 

result Congress clearly intended. Second, a reasonable 

 26 
pornographer might conclude that, after the enactment 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 interstate or 

that had remained intrastate. Thus, some "homegrown" 

pornographers might have turned to the interstate market, 

increasing the interstate demand for child pornography. 

We are troubled by the lack of express Congressional 

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 render it 

 irrational. . . . The history of congressional attempts to 

 address the problem . . . provides sufficient 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 Co., 449 

U.S. 456, 469 (1981)). More importantly, we are satisfied-- 

in view of the teachings of Wickard's progeny, buttressed 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. 

 27 
ROTH, Circuit Judge, concurring: 

I write separately because, although I agree with the 

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 its opinion and 

(2) to the effect of child pornography on interstate 

commerce in Part IV. I believe that both issues should be 

considered together. Their interrelationship is helpful 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 sufficient in 

and of itself to establish the statute's constitutionality. 

When, however, we are presented with a statute, such as 

the present one, which has been repeatedly held to cover 

conduct that affects interstate commerce, we must keep the 

previous history in mind when we examine the 

jurisdictional element of an amendment to the statute. 

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 findings that 

the possession of guns in a school zone substantially 

affected interstate commerce. Id. Here, we do have 

legislative findings to aid judicial evaluation of the effect of 

child pornography on interstate commerce. Cf. United 

States v. Rybar, 103 F.3d 273, 279 (3d Cir. 1996) 

(determining that "there are legislative findings to aid 

judicial evaluation of the effect of machine guns on 

interstate commerce.") 

As the majority points out in Part IV, legislative history 

concerning predecessor and successor child pornography 

statutes supports the reasonableness of Congress's 

determination that a nexus exists between child 

pornography and interstate commerce. Because we have 

such a history, the jurisdictional element of S 2252(a)(4)(B) 

should be examined with that history in mind. These

legislative findings are relevant not only to the majority's 

analysis in Part IV of the effect of child pornography on 

interstate commerce. They are also relevant to the 

evaluation of the jurisdictional element in Part III because 

that jurisdictional element is directed at the same evil as 

 28 
the other provisions of the statute -- interstate trafficking 

in child pornography. I would defer to Congress's judgment 

that the regulation of materials, such as blank Polaroid 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 thatfilm is 

used to create child pornography that is possessed 

intrastate. 

For the above reasons, in the context of the present case, 

I do not agree with the statement of the majority that "[a] 

jurisdictional element is only sufficient to ensure a statute's 

constitutionality when the element either limits the 

regulation to interstate activity or ensures that the 

intrastate activity to be regulated falls within one of the 

three categories of congressional power. Slip Op. at 11." I 

believe the above statement is too limited. We cannot 

examine the jurisdictional element in isolation. An

additional factor in the analysis of whether the jurisdiction 

element limits the regulation to interstate activity 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 jurisdictional 

element here does limit the regulation to activity affecting 

interstate commerce because legislative findings have 

established the connection between child pornography and 

interstate commerce; the further requirement that the 

material on which the pornography was produced have

_________________________________________________________________ 

1. The essential components of child pornography are film and video. 

Without these basic components, pornographic images of children-- 

which even Rodia concedes Congress may regulate under the Commerce 

Clause if transported interstate--could not be created. Moreover, instant 

film, such as the Polaroid film at issue in this case, is particularly 

important to both possessors and manufacturers of pornography; 

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 may seem a relatively 

odd commodity for the federal government to regulate, the onus for this 

anomaly lies upon those who manufacture and possess child 

pornography. 

 29 
moved in interstate commerce will be proved on a case by 

case basis. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 30