Lo dismiss Selseth’s ciment at this stage of the proceedings.

The Court carnot enceavor to gue rule, on whal type

and kinds ol evidence Lhe government will succe lly admit at

evidence that

trial. If the government alleges that it poss

would enable it Lo prove at trial that Selseth’s conduct aftecked

(or potentially substantially affected) interstate commerce, then

rament a

nto deny the qo

the Court possesses no legitimate re

chance to prove its case in chie Only upon submission and

consideration of ali the vernment’s evidence, once admitted,

Lhe Court properly examine whether the government has met its legal

and constitutional burden of proof, 1

unconstitutional conviction.

Iv. CONCLUSION
For the foregoing reasons, the Court hereby GRANTS the

government's motion to reconsider, VACATES AND REVERSES its

previous ruling, and DENIES Selseth’s. metion to Aismiss h

indictment.

IT IS SO ORDERED.

=

r, Judge
cbriet Court

Date:



context of cour instruclLions toa the jury. By delaying

th

resolution ot this issue, Lhe Court endeavors bo provide

en

parties with sulficient time to prepare and present argument

the proper legal burden to assign the government. Theretore, the

Court will hear supplementary briefing by both partics on this

question prior to deciding whether to instruct the jury Chat it

5 on commerce.

or merely “elf

must find “substantial elfe

Applying its interpr ation of the case-by-case inquiry to

Selselh, Lhe governmenl argues Lhat Selseth indie¢tment is

ngtitutional under the “market theory” argument. found in Rodia

and Angie. fically, the government contends that:

ty of Seckion 2251(¢

thal the enil
ivom such ms 1
nd for child pornography and
SUPport the national child pornography
market, which substantially affects interstate
commerce.

Rep. Br. p.?.

While true with respect to § 2252(a) (4) (B), and poe

sibly truce

a3ffner, as discuss low, did not

with respect to
apply “market theory” in the § 2251(a) context, making the
application of it here an extension of Angle), the Court believes

that this very argument demonstrates that Selseth’s indictment, by

itself, cannot survive a case-kb ase inquiry. The Court notes

th manufactured the

that the government does not. aliege that

cses. Nor does the

mmercial pu

pornography at



on these images would provide il with the best shot of meeting j

legal burden of proving that Selseth po sad pornographic images

of a real minor, and not merely “virtual,” computer-generated

ges of nonexistent people.

II, STANDARD OF REVIEW

A proper indictment serves three functions. {i states all
elements of Che charged offense, informs defendants of the nature
of the charge, and enables defendants to plead double jeopardy as
a bar to vepeated prosecution for the same offense. United States

v. Givonda, 158 P.2d 1201, 1209 (Vth Cir. 1985). The indictment is

not tested on the strengths or weaknesses of the government’s case.

It 18 examined solely [or its sufticiency in charging the offense.
United States v. Risk, 843 F. 2d 1059, 1061 {7Lh Cir. 1988).
ITI. DISCUSSION

Vhe government first challenges this Court's ruling by arguing

that, in adjudicating commerce clause issues, courts lack the power

to declare statutes unconstitutional as applied te particular

For support, the government cites Maryland v. Wirtz

(1968) and United States v. Lopez, 514 UD
549, 558 (1995). In particular, the government notes that Lopez
quoted Wirtz’s Language that “the Court has said only that where a
general regulatory slalute bears a substantial relation to

character of individual instances arising

commerce, the de minimis

Ta. Ace

under that statute is of no

equence.


That being said, the Court does not believe it correct tov
Angie as conclusively binding here. As noted above, Angle
concerned solely 8 2252 (a) (4) (Bb). Section 2251(4), the statute

present in Selseth’s indictment, contains nearly che exact same

jurisdictional language as § 2252 (a) (4) (B). However, in United
States v. Schaffner, 958 F.3d 675 (7th Cir, 2001), the Seventh

to elect Lo treat these slatut

Circuit on the surla

differently. Specifically, in Schaffner, the Seventh Circuil

against an as-applied chaJlenge as a Sculeg

upheld § 2251 (4)

one” and “category two” cegulalion, bul held that cal. ory three

was “not directly applicable.” Id. at 682. In so doing,

ignored Angle's “market theory” reasoning. Therefore, for the

Court Lo properly ¢ d Angle’s “market theory” analysis te
prop y go Y ¥

thaffner to determine why Lt

examine

§ 2251(a), the Court ma

ignored “market theory,” and whether this © on sas any
substantive value.

In Schaffner, the defendant took a single pornographic
photograph of a fifteen-year-old girl, and then transported it

chaffner therefore involved a ¢ where Lhe

@

ross state lines.

State jiines, even the

pornography at-issue clearly
did not concern “commerce,” in Lhe usual sense of the word.

Schaffner, unlike Angle, found that

Based on these fac
§ 2251(a) qualified under categorles one and two. Having found

§ 2251(a) constitutional as-applied to the particular factual

- li



the “market theory” re jing ol the Third Circuit in United States

v. Rodja, 194 F.3d 465, 477 (3rd

g. 1999), quoting with approval

Rodia’s statement thal:

Some ynograpners manufacture, possess, and
use child pornegraphy exclusively within the
boundari of a slé and often only within

the boundaries of their own p rty. It is
umrealistica Lo think that Lhose pornograph rs
will be contenl with their own supply, hence
they will Likely wish to explore new or
additional pornographic photographs of
children. Many of those pornographers will
lock to the interstate market as a source of
new material, whether through mail order
catalogs or through Lhe Internet. Therefore
the possession of “home grown” pornography may
well a further interest.
pornography that immediately or eventually
animates demand for interstate pernography. Tt
is also reasonable to believe the rel tated
proposition that disc raging the j
possession of pornography will cause some of
the child pornographers Lo leave the realm

Seventh Circuit held that “to etively

d

Congress could have legitimately foun

ral conlrol over both the interstate and

local versions of the activity.” Id.

As such, the Seventh Circuit upheld § 2252(28) (4) (B) “because

intrastate activity that is substantially

regulated interstate market of child

related Lo the

pornography.” Id.
Y


channels of intersltate commerce. Second,
Congress empowered to regulate and protect
the instrumentali of interstate commerce
or persons or things jn interstate commerce,
even though Lhe threat may come only from
intrastate activit + Pinally, Congres
commerce aulhority include the power to
regula th tivities having a substantial
relation to interstate commerce, 7.4., those
activities Chat substantially afte

interslate cammerce.

Id. at S58-559 (interna) citakio

& omilted).

In so doing, fopez does not siand for the extremely broad

proposition that one no never chajlenge a statute as
unconstitutional as applied due to a Jack of an interstate commerce

nexus, Rather, Lopez merely holds thal a slalule cannot Lether its

constitutionality to “de minimis” impacts upon commer
result, since fLoper federal circuits have thrice found statutes
unconstitutional as applied to particular defendants. Sve United
States v., Stewart, 348 F.3d 1132 (9th Cir. 2004) (defendant's
possession of a machine gun, in violation of 18 U.S.C. § 922(0),
did not substantially affect interstate commerce); United States v.

McCoy, 323 r.3a 1)

(9th Civ. 2003) (defendant's possession of

child pornography, in violation of 18 U.S.C. § 2252(a)(B) (4), did

nou substantially affect interstale commerce); United Sta

236 F.3d 325 (7th Cir. 2001) (defendant's possession of child

§ 2252 (a) (B) (4),

pornography, in violation of 18 U.S
substantially atfect interstate commerce). Other courts (including

the Seventh Circuit), while not necessarily finding statutes


government contends Lhat Wirtz and Lopeg bars any individual

defendant from claimi that a tederal statute Js unconstitutional

ascapplied to him «ue to the failure to Link his conduct

suffice

tently bo inte e@ comme

The government's sweeping interpretation of finds no

support in either Lopez or its progeny. The Court notes that the

ernment Cites Lopez out of context, and that the full citation

stands inapposite fo the government's position here. Specifically,

Lopez actually referenced Wietzs to support its position that:

In response Lo the dissent’s warnings th the
Court wa werless to entorce the Limitations
on Congress’ commerce powers because “all
activities affecting commerce, even in the
minutest degree, [Wickard|, may be regulated
and controlled by Congress,” the Wirtz Court
replled that the dissent had misread precedent
as “neither here nor in Wickard has the Court.
declared that Congre may use a relativel
trivial impact on as an excuse for
broad general regulation of state or private
activities,” Rather, “t Court has said only
that where a general regulatory statute bears
a substantial relation to commerce, the de
minim character of individual instances
arising under that statute is ot no
consequence. ”

Id. at 258 (internal citations omitted).
Immediately thereafter, Lopez laid out the framework for

adjudicating the constitutional requirements for an trtersatate

nmerce nexus, holding:

Consistent with this structure, we ha
identified three broad categories of activity
that Congre May regulate under its commer
power. First, Congress may regulate the use

5 -


clreumstances at-issue, Schaffner had no reason co justify

) under category three, and therefore no reason to dl

market theory. Accordingly, the Court believes that Schal

implicitly distinguished itself from Angle solely due to the

factual © ims ta challenge Schaffner

Uw

‘market

ty
a
=
c
RK
ie}

considered. As a resull, Lo apply
theory” to § 2251(a) is meaningless.

Having addressed the concern thal Schaffner bars application
of “market theory,” the Court now turns to the question of wheLlher

it can legitimalely extend “market theory” from Angle to & 22b1 (a).

For this purpose, the Court notes that the two staLlutes prosaribe

the related activities of intrastate possession and production of

child pornography, respectively. Indeed, the two statutes contain

almost the exact same jurisdictional language as § 2251 (a),

l

differing only in inconsequenlial grammar choices.' Therefore, it

would be utterly nonsensical for the Court to apply different

2)

analyses to these two statutes.

claus

COMME Le

The Court therefore holds that Angle's “market theory” ¢

by-case inquiry applies to Selseth’s as-applie challenge to

§ 2251 (a). Ba on this inquiry, the Court feels it inappropriate

'18 § 2252 (a) (4) (b) possession of child pornography
“which w, produced using mate ls which have bean mailed or so shipped
or tre any means including by compule. “Bs ated above,
18.0. proscribes production of child pornography
produc ng materials that have been mailed, shipped, or trarsported

jn interstate or foreign commerce by any means.”

- i8 -



Lhis issue, il ne ain consider thal argument in the context.

oF

Angle.

llowever, the government also icends thal,

permits defendants lo file as-applied challenges, e foreclosces

such uw challenge in the context of § 2251 (a rdingly, Lhe

government asks the Court to view Angle's facial ruling with

respect to § as precedent barring Selseth’s as-

§ 2251(a). The Court declines to do so, in

applic
dight of United States v. Schaffner, 258 F.3d 67h (7th Cir. 2001).
In Schaffner, as the Court explains below, the Seventh Clreuit
effectively ignored Angle’s reasoning within Lhe context of an as-

applied challenge to § 22bl(a). In the Court’s view, Schaffner’ s

,

Angl reasoning suffices lo reject Lhe

failure to disc
government’s view thal Angle controls this case. Nevertheless,
Schatf{ner never disfavored Angle, and implicitly distinguished
itself from Angle based on factual circumstances present in
Schaffner, but absent here. Therefore, the Court believes that
although Angie does nol qualify as precedent, it nevertheless

serves ag influontial authority. As such, the Court believes it

w

s Selseth’s moLion under the Angle framework.

appropriate to addr
In Angle, the Seventh Circuit recognized $ 2252(a) (4) (B) as a

valid “calegory three” staLute under Lopez, 1.46., one regulating

aclivities that “substantially affect interstate commerce.”

Angle, 234 F.3d al 335, 337. ‘'o do so, the Seventh Clreuit adopted



Minute Order Harm (06/97)

United States District Court, Northern District of Ilinois

¢ of Assigned J Sitting Judye if Oth
Nem Nagle jaa Harry D. Leinenweber tins haried ietse
CASE NUMBER 03 CR 1043 DATE 6/17/2004
CASE United States of America vs. Reid Selseth
TITLE

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) slate briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY;

qd) 0 Filed motion of [ use listing in “Motion” box above, |

(2) Og Brief in support of motion due ____

Q) oO Answer brief to motion duc_____. Reply to answer briefduc____-

(4) oOo Ruling/Hearingon ——_ssetfor at.

(5) a Status hearing set for 7 July 04 at 9:00 A.M...

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on_ set for__— at
(7) Qo Trial[set for/re-set for]on____at__

(8) Oo [Bench/Jury trial] [Hearing] held/continued to__—__at _

(9) oO This case is dismissed (with/without] prejudice and without costs[by/agreement/pursuant to]

GFRCP4(m) CLocal Rule 41.1 OFRCP41(a(1) OO FRCP41(a)(2).

do [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: The Court hercby
GRANTS the government's motion to reconsider, VACATES AND REVERSES its previous ruling, and
DENIES Selseth’s motion to dismiss his indictment.

(i) @ [For further detail see order attached to the original minute order.)

No notices required, advised in open court

Na notices required. umber of notices

JUN i 8 Zu04

date dockacd

Notices mailed by judge's staff.

Notified counsel by telephone,

a | Dacketing to mail notices.

SD

Mail AO 450 form, docketing dbf

Copy to judge/magistrate judge.

fee ath ? dats mailed notice
courtroom jae

WAP deputy’s
initials

Daghing reegiyed in
“r¥ central edie tice maling deputy initials



Uniled States v. Bell, 70 F.3d 195, 498 1995); United

States v. Kenney, 91 F.3d 8384, 887 (/th Cir

1996). Furthermore,

h the government and seth appear to recognize the case-by-

case inquiry as binding Seventh Circuit law, although they difter

mmewhat in their interpretations of what it requires. Sherelore,

this Court finds undertaking such a “case~by-case inquiry” usetul,

and Lhe x in reference to thls case. As

oper w
such, the Court now turns to examining the parties’ interpretations

what this case-by-case inauiry demands.

In its opening bricf, the government originally appeared to
argue tor what Selseth properly characterized as an “all or

nothing” approach to the case-by-case inquiry, contending thal:

. Lhe case by se inquiry to which the
court. referred was the €

slate commerce Lnat Section 2 2a) (4) (B)
i 1 namely, shat the that

contains child pornography has bi ipped
Lransported in interstate or fore commerce
or was produced using materials which have
been mailed or so shipped or Lransported by
any means including by computer.

Gov, Br. p.iO-ll.

Under this formulation, the case-by-case inquiry seemingly

consists merely of a recitation of the standard requirement Lhat an

indictment slate all elements of the offense.

In its response brief, the government clarified its position,
acknowledging Lhat “Angle also suggests thal the mere presence of

a jurisdictional element will not automatically quarantee that a



However, in Angle Lhe Seventh ecuit uoheld § 2252 (a) (4) (B)

only against a facial challenge. Although the Seventh Circuit in
Angle did not direanly address theoretical as-applied challenges,
it hinted that it might view such challenges favorably under

cettain circumstances, Tor example, the Seventh Circuit admitted:

we have our doubts whether

3 a) (4) (B)’s Juri element
(particularly with vesvect ta p rsor
materials guarantees that the activity
regula (intr possession of «hi

pornography) substantially affects interstate

commerce.

ld. at 237.
Although Angle did not reach this issue due to the facial
nature of the defendant’s challenge, its skepticism Lowards the

regulation of “precursor materials” suggests thal - under the Angle

tramework - the Seventh Circuit might possibly view the present as-

applied challenge favorably.

ilarly hinting al the Jlegitimacy cf an as~applied
challenge, Angle cited the Pirst and Eighth Circuits for the

proposition that “S 2252(a) (4) (B) has a jurisdictional element

which ensu yyrcase inquiry, thal the pornography

€ commerce.” Id. at 336. Angle never

in question alfec
explicitly adopts the “case-by-case inquiry” language as binding

daw. lowever, the notion afl conducting a case-by-case inquiry

and the Seventh Circuit has explicitly

derives from Lo

See Lopez, $14 U.S. at 562;

applied it im gun ¢


unconstitutional applied, nevertheless engaged in the

constitutional inquiry that the government claims Lor foreclosed.

Uniled States v. Singletary, 268 F.3d 196 (3rd Cir. 2001); United

States v. Schafiner, 258 (7th Cir. 2001); United States v.

McAllister, /7 F.3d 387 (11th Cir, 1996); United States v. Pierson,

114 F.3d 228

S50] (Sth Cir. 1998); United States v. Thom
(0.C. Cir. 1997); Uniled States v. Farmer, 73 F.3d 836 (8LA Cir.
1996). In addition, the Supreme Court itsclf, while technically

the constitutional issue, interpreted 18 U.S.C,

8 844(i), the tederal arson statute, as not reaching owner-occupied

residences, because it reasoned that these buildings fail] to affeot
commerce substantially. See Jones v. United States, 579 U.S. 846
(2000).

Next, Lhe government a es that United States v. Angle, 234

F.3a 326, 338 (7th Cir. 2000), “is edential wilh respect to the

conslitutionality of Sechion 2251(a)” and therefore bars any

finding that § 2251(a) is unconstilutional as applied to SelseLlh.

In Angle, the Seventh Circuit denied a facial chailenge Lo the

constitutionality of 18 U.S.C. § 2252(a) (4) (8B), a companion staLute

to § 2251(a). Here, part of the government’s argument sLoms trom

-S§ rejected contention above that Lopez prevents courts from

eclaring a statute unconstitutional as applied Lo 2 particular

Le comme

ce nexus

defendant. for failure Lo establish an intersta

As the Court disagrees with the government’s slated position on



wore found on a single scan card or computer disk that at some Cime
traveled to the United States Following its manufacture in Japan.
At the Lime the computer disk arrived in Illinois, it was blank and

pertectly legal to purch and transport in interstate commerce.

This disk constitutes Lhe government’s sole jurisdictional link to
§ 225l(a), as it was the oaly thing associated with the visual
depictions that moved in interstate commerce (albeit at a time when
the disk contained no information at all). For this reason, the
government acceded to Selseth’s request to strike § 2251(d) from
the indictment.
B. The Government's Supplemental Evidence

The government requests the opportunity to supplement the
factual record by providing the Court with an in camera inspection
of evidence retrieved from Selseth’s home which did not form part

of his indictment. The government contends that, although the

indictment concerned just five pietures of a single minor child,

actually possessed “thousands of images of child

pornography . . . in various forms, including magazines,

of downloaded images - many of

otographs, disks, and copt

which . , . travel in interstate commerce.” The government

contends that it selected the at-issue images because it knew the

identity of the child depicted in these images, and pelieved that

this child “was psychologically capable of testifying in the qrand

jury.” In so doing, the goveenment felt that an indictment based


government. allege that Selseth ever traded, ied or moved Lhe at-

m outside of his own home, much les thal he

issue pornography ir

sLate of Tllinois. The government thus

removed it Lrom the

the Court to hold that Seiseth’s manufacturing of ac rete number

of photographs, ol 4 single in-stale minor, when the photographs

seach’ s owr hous © national

riever even left Se , somehow “supports =

pornography market, which substantially aiflects interstate

commerce.” In light of the limited allegations in Lhe indictment,

and Angle’s skepticism about basing a jurisdictional link solely on

at 337, the Court

“precursor materials,” See Angle, 234 F.3

believes that the indiclment’s al legations, while abhorrent, serve

a

as a prime example of the type of “noneconomic, criminal” conduct

commerce challenges. United States

that cannot survive inters

an Angle

598, 610 (2000). ‘Th

v. Morrison, 5293
framework, Lhe indiclment, without more, cannot survive.
The government, however, does provide more, Specitically, the

government hopes to cure the indictment’s failings under the case-

by-case inquiry by asking the Court to consider, as supplement.
evidence, pornographic materials cetrieved from Selseth’s home for

in

which the government chose not to prosecute him. As disc

the factual background, the government contends that, although the

indictment concerned just five pictures of a single minor child,

Selseth actually possessed “thousands of images of child

, including magazines,

pornography . . + in various for



Now, however, Lhe government has alleged that Selseth has

repeatedly resorted to that market. Having engaged in this market,

the possibilily certainly exists that Selselh would use the ate

issue pornographic depictions for markel-related activity. ‘Uh

could, for ample, include trading the depictions for other

pornograpt material through conlacts he made in the interstate

market.

Furthermore, the fact that Selseth allegedly took these

photographs more than five years ago, and now has allegedly

accumulaked e substantial collection of similar images, exemplifies

the “market the y” rationale for prohibiting intras ion

of child pornography in the itirst place: the fear that “[i]t is

will be content with

unrealistic to think Lhat tnose pornographe

their own supply, hence they will likely wish to explore new or

graphic photographs of children.” Angle, 234 F.3d

additional porn

at 338. Consequently, under an Angle-style “markel theory”

evidence suffices to permit the

by-caseé analysis, the now all
indictment to stand.

such, the Courl finds that Angle, 4s interpreted by both

th’s

parties and th Court, would call for not dismissing Sel

indictment at the presont time. llowever, at trial Lhe government

will need to produce and admil evidence that establi

connection hbetwe Selseth’s conduct and offec

substantial effects, on interstate commerce.



Selseth or the government, which the other party either admit
Fails to dispute.
A. The Indictment

The indictment at issne charges Selseth with five violalions

Onder § 2251 (a), a person facas criminal liability

ii he induces, etces or enlices a minor to engage in “any

sexually explicit condition for the purpese of producing any visual
depiction of such conduct,” provided bthat:

. such person knows or has reason to know
that such sual detion will be transpe d
in interstate or foreign commerce cr mailed,
ii that visual depiction was produced using
materials that have been mailed, pped, or
transported in interstate or foreign commerce
by any means, including by computer, or if
such visual depiction has actually been
transported in interstate or foreign commerce
or mailed.

The sent indictment alleges Lhat seth participated in

producing Live “.ipg” doc format. used for shoring

graphical depictions), with each document containing a single

image. The images were allegedly produced in the State of Illinois

more than five years ago. Since that time, the images have never
left the State of Illinois. The images each depict a single

Tllinois minor chiid exclusively. Therefore, with respect to the

no hook to

depictions themselves, the government acknowledge
interstate commerce.
(Instead, the government seeks to prosecute Selseth based on

the medium containing the £3 Specifically, the imag



ax ras woman soprey grospecp sol CE Fey
EASTERN DIVISION JUN
JUN 17 2004 17 2004

UNITED STATES OF AMERICA, CHAE,
JUDGE HARRY 0. LEINENWERRERR Dart. Cossing

Plaintigs US. BISTRICT COURT JUDGE S. DISTRICT couRT
ara Case No. 03 CR 1043
v. BOECITE
JUN 4 8 2004 Hon. Harry D. Leinenweber

REID SELSETH,

Defendant.

MEMORANDUM OPINION AND ORDER

On April 7, 1999, a Grand Jury indicted Defendant Reid Se
(hereinatter, “Selseth”) on tive counts ot violations of the child
18 U.S.C. § 2251(a) (hereinafter, “§ 2251 (a)")

pornography statutes

and 18 U.S.C. § 2251{d). Selseth moved to dismiss the indictment
in its entirety, on the grounds that the conduct alleged did not.
violate § 2251(d), and that § 2251(a) stands unconstitutional as
applied to him. In response to Selseth’s motion, the government

agreed to slrike ajJl references in the indictment to § 2251 (d), but

&

contended that under Seventh Circuit precedent, Selseth had no

istitutional claim concerning § 2251(a). On Maren 19, 2004, the

CourL granted Selselh’s motion Lo dismiss his indictment in its

entirety. Shortly thereafter, the government moved for the Court

to reconsider its ruling as Lo § 2251(a), and the Court agre
receive ful] briefing on the government's motion.

I. FACTUAL BACKGROUND

The Court compiled the following factual background From both

the indickment and representations made to the Court by cither

2


“

li survive a Commerce

b

w Clause challenge.

Gov. Rep. Br.,

Accordingly, Lhe government now contends thal “the case-

by-case inquiry re “S$ to a determination that the conduct that

subj ec the defendant to prosecution have some impacl

interstate commerce - not a substantie)] eflect on interstate
commerce.” Id. p.o. (internal citation omitlecd, emphasis in
original). In sa do the government concedes that “the

government must establish a case-by-case effect on interstate

commerce even in prosecutions of interst

a
i)

possession.” id. p.6.

formal

By clarifying i -by-case inquiry, the

government mostly harmonized The sole

ne whether or not the

remaining area of possible disagreement conc
case-by-case inquiry requires proving “substantial effects” on
commerce, oc simply “eftects” on commerce. The Court acknowledges

that, given the fact that the government waited until ils reply

lacked an adequate

brief to state ite position succinetly, $e

the government's poslti that Lhe

opportunity te

prosecution need nok pro “substantial etfects” on commerce. Due

to ils eventual ruling in this opinion, the Court does not need to

answer this ques vight now, as the Court now considers it

inappropriate to dismiss the indictment without fi providing the

ins case at trial.

rity to pre

government with an opport

Instead, the Court will address the standard

burden of proof jt wil] require the government to meet in the


photographs, disks, and copies of down jmages ~ many of

which . . . traveled in interstate e." Gov. Br, p.12. The

gavernment argue at the conduct alleged in the indictment, when

ntext of Selseth’s behavior as

jewed within

v emonstrated by

this supplemental evidence, lishes the parLiculasized link to

interstate commerce.

The Court declined the government's request that it review, jn

camera, the additional evidence collected trom Selseth’s residence.

The Court did so because it believes that, al this stage, the

government need not present any actual eviden to suppork its

rtions. Rather, the Court holds Lnat che overnment’ s

emenLla] material

allegations of this quantity of suppl

suilices fo meet the government's burden, under Lhe case-by-case

induiry, to at least place Selselh on tria The Court noles that

it believes a trial is proper regardless of whether it ultimately

ruiLes that the inquiry requires Lhe government to ullimatecly Ow

state commarce.

tantial effects” or merely “eftects” on int

rablishing

In particular, Lhe Court notes that Angie permits &

a commerce link via “market theory.” This Court’s original opinion

ended on the entirety of allegations presented to the Court

that $ ad five pornographic photographs

at that tim

ened that, even under

of a single in-state minor. The Court re

market tt ernment had not @stablished a sufficient

sonduct and interstate commerce.

nexus betwixt Selsetr