Power. Therefore, the only issue left for the Court to address is
whether § 2252(a) is unconstitutional as applied to Selseth.

To serve as a valid exercise of Congress’s Commerce Power, a
statute must engender to regulate: (1) the channels of interstate
commerce; or (2) the instrumentalities of interstate commerce, or
persons or things in interstate commerce; or (3) activities that
substantially affect interstate commerce. United States v. Lopez
514 U.S. 549, 558-559 (1995).

The aforementioned Angle case serves as one-half of the
Seventh Circuit’s recent authority on § 2252 (a)’s
constitutionality. In Angle, the defendant was stopped by U.S.
Customs at the United States-Mexico border. During this stop,
Customs found several videotapes containing child pornography that
the defendant was carrying across the border from Mexico. A
subsequent search of the defendant’s home uncovered additional
videotapes that had unquestionably traveled in interstate commerce.

Despite the facts of Angle, which demonstrate violations of
§ 2252(a) on multiple grounds, the Seventh Circuit decided to
uphold § 2252(a)’s constitutionality on very broad grounds. The
Seventh Circuit characterized § 2252(a) as a valid “category three”
regulation, the type defined by Lopez as regulating activities that
substantially affect interstate commerce under a so-called “market

theory.” Specifically, the Seventh Circuit adopted the reasoning


should base such an inquiry on factors such as the quantity of
visual depictions possessed, the number of individual victims
displayed in the depictions, the relationship between the victims
and the defendant, and whether the defendant has actively engaged
in intrastate commerce to acguire the depictions. Under such
reasoning, a Court’s factual finding that, for example, the
defendant possessed a small number of depictions of one or few
victims, knew the victims personally, and never traded, bought or
sold any depictions might suggest that no substantial likelihood
exists that such a defendant would one day turn to the interstate
market to satisfy his demand for child pornography. Conversely, a
defendant who exchanged numerous depictions of numerous intrastate
strangers would probably find the intrastate market insufficient to
satiate his urges, and eventually decide to pursue interstate
pornography.

Under such a rubric, § 2252(a) is clearly unconstitutional as
applied to Selseth, based on the available factual record. Selseth
possessed only five visual depictions of a single minor victim.
The government has made no effort to demonstrate that Selseth
participated even in intrastate commerce, and has certainly
provided the Court with no reason to infer that Selseth, through
market theory, would one day likely proceed to engage in interstate

commerce to obtain child pornography. The government's sole link


Commerce Clause power.” In doing so, however, the Seventh Circuit
upheld § 2252(a) only against a facial challenge. In speaking of
the jurisdictional hook, the Seventh Circuit favorable referenced
the First and Eight Circuits’ notion of engaging in a “case by case
inquiry” to see whether “the pornography in question affects
interstate commerce.” Id. at 336. As applied to the facts here
then, it seems that the relevant Angle inquiry concerns whether the
activity Selseth engaged in was “substantially related to the
closely regulated interstate market of child pornography.”

Since Angle, the Seventh Circuit has only once opined on the
constitutionality of § 2252(a). In United States v. Schaffner, 258
F.3d 675 (7th Cir. 2001), the Seventh Circuit also upheld the
constitutionality of § 2252(a), but it did not rely on the
reasoning of Angle in doing so. The defendant in Schaffner was
charged with taking a single pornographic photograph ef a fifteen
year old girl, and then transporting it across state lines. There
was no “commerce” in the usual sense involved in this
transportation. The Schaffner defendant merely snapped the photo
of the underage girl while they visited a neighboring state, then
drove the photo back to his house - crossing state lines. Applying
the Lopez three-category test, the Schaffner Court upheld § 2252 (a)
as applied to the defendant as both a “category one” (“channels” of

interstate commerce) and “category two” (“things” in interstate


of the Third Circuit in United States v. Rodia, 194 F.3d 465, 477
(3rd Cir. 1999), quoting with approval Rodia’s statement that:

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 [**28] asa
source of new material, whether through mail
order catalogs or through the Internet.
Therefore, the possession of "home grown"
pornography may well stimulate a further
interest in pornography that immediately or
eventually animates demand for interstate
pornography. It is also reasonable to believe
the related proposition that discouraging the
intrastate possession of pornography [*338]
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.

United States v. Angle, 234 F.3d at 338.

Using Rodia’s reasoning, the Seventh Circuit held that “to
effectively regulate child pornography, Congress could have
legitimately found it necessary to have federal control over both
the interstate and local versions of the activity.” Id. at 338.
Accordingly, the Seventh Circuit declared “because § 2252 (a) (4) (B)
prohibits intrastate activity that is substantially related to the
closely regulated interstate market of child pornography, we

conclude that the statute is a valid exercise of Congress's


emphasis on the importance of the photograph crossing state-lines.
Thus, the apparent contradiction in two opinion’s holding regarding
the extent of § 2252(a)’s constitutionality remains.

Although Schaffner gives a passing citation to Angle, it
neither bases its reasoning upon it (despite ample factual
opportunity) nor specifically overturns it. The law is further
clouded by the fact that not a single Seventh Circuit District
Court has cited to Schaffner on the interstate commerce question,
and only United States v. Brown, 2001 U.S. Dist. LEXIS 25664 (W.D.
Wisc. 2001) - which predated Schaffner by three months - has
followed Angle.

The Court is thus faced with the Herculian task of attempting
to reconcile these two opinions. After careful consideration, it
endeavors to do so in the following way. If a defendant possesses
child pornography that has crossed state lines, then § 2252(a) is
best viewed as either a permissible category 1 or category 2
regulation. If, however, the alleged child pornography has not
crossed state lines, than § 2252(a) is constitutional only as a
category 3 regulation under a “market theory.” This requires a
conditional inquiry into whether the intrastate activity engaged in
by the defendant is “substantially related to the closely regulated
interstate market of child pornography.” Although the Seventh

Circuit has never specified, the facts of Angle suggest that Courts


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

‘Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 03 CR 1043 DATE 3/19/2004
CASE United States of America’ vs. Reid Selseth
TITLE
[In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) im Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on __ set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor at
(ea) Oo Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continuedto at
60 a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4¢m) CLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).
ao) olf [Other docket entry] . ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion
to Dismiss his Indictment in its entiretyis GRANTED. status hearing stricken.
(1) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required, ;
umber of notions
Notices mailed by judge's staff. “
Notified counsel by telephone. MAR al 8 2004
Y | Docketing to mail notices, \
Mail AO 450 form. it soy dock fired deputy initials yj
Copy to judge/magistrate judge. a {
courtroom Ha ' 2 ste mailed notice
WAP deputy’s
initials
- Date/time received in
central Clerk’s Office cnaling deputy initials



the “market” theory that formed the basis of Rodia and Angie, the
Ninth Circuit wrote “we see no more justification for assuming that
the possessor of a ‘home-grown’ photograph of one’s one child will
ultimately enter the interstate pornography market as: an addict
than there is to assume that the possessor of a single marijuana
cigarette will inevitably turn into a full-time heroin junkie.”
Id. at 1122. Further, in rejecting that McCoy’s activities were
substantially-related to interstate commerce, the Court concluded
that McCoy’s venture “was purely non-economic and non-commercial,
and had no connection with or effect on any national or
international commercial child pornography market, substantial or
otherwise. The picture . . . did not ‘compete’ with other
depictions exchanged, bought, or sold in the illicit market for
child pornography and did not affect their availability or price.”
Id. Consequently, “simple intrastate possession of home-grown
child pornography not intended for distribution or exchange is not
in any sense of the phrase, economic activity.” Id. (internal
citation omitted).

To date, no Seventh Circuit case (at either the Circuit or
District level) have cited or discussed the decisions in McCoy and
Corp. However, neither of these cases as applied necessarily
contradict Angle, and certainly not Schaffner. As noted above,

Angle prohibits only activity “substantially related to the closely

-11-


to interstate commerce came through the blank computer disk Selseth
used to store these images.

Such a reading and application of Schaffner and Angle would
also harmonize Seventh Circuit law with that of the Sixth and Ninth
Circuits, both of which have held § 2252(a) unconstitutional as
applied to particular defendants under circumstances, such as this,
in which the pornographic images themselves did not travel in
interstate commerce, but the materials used to produce them did.
In United States v. Corp, 236 F.3d 325 (6th Cir. 2001), the Sixth
Circuit found § 2252(a) unconstitutional as applied to a 26 year-
old defendant who took and developed a pornographic photographs of
his 17 year-old girlfriend for personal use, where the only
jurisdictional link to interstate commerce rested on the fact that
the photographic paper containing the photographs had an origin
outside of the State of Michigan. The defendant in Corp was not
involved in the sharing or distribution of the pictures in
question. On the basis of those facts, the Sixth Circuit concluded
that “Corp’s activity was not of a type demonstrated substantially
to be connected or related to interstate commerce.” Id. at 332.

Similarly, in United States v. McCoy, 323 F.3d 1114 (9th Cir.
2003), the Ninth Circuit found § 2252(a) unconstitutional as
applied to a defendant who produced and possessed a single

sexually-explicit image of his own daughter. Sharply criticizing

- 10 -


commerce) regulation because the photograph in question actually
crossed state lines. However, with respect to its discussion of
“category three” (substantially effects interstate commerce), the
Seventh Circuit neither quoted or relied upon the supposedly
precedential Angle decision, nor its “market” theory. Instead,
Schaffner held that “the jurisdictional element makes federal
criminal responsibility turn on the actual movement of the
pornographic item in interstate commerce. . . . The criminal
activity is inducing a minor to participate in the taking of the
photograph and the photograph’s movement in interstate commerce.”
Td. at 683. Although Schaffner does not specifically overrule or
limit Angle, Schaffner pegged constitutional jurisdiction to the
actual movement of the photograph across state-lines.

Note that both Schaffner and Angle involved fact patterns
where the at-issue pornographic images crossed state lines.
Therefore, neither involved a case such as the current one - where
the pornographic images remained exclusively in-state, and only the
materials used to produce the pornography passed through interstate
commerce. As such, one cannot distinguish Schaffner and Angle
based on fact pattern. One can speculate that Schaffner did not
discuss the constitutionality of § 2252(a) as applied strictly to
materials in inner-state commerce because it had no need to do so.

Although technically correct, this ignores Schaffner’s repeated


were found on a single scan card or computer disk that at some time
traveled to the United States following its manufacture in Japan.
At the time it arrived in Illinois, the scan card/computer disk was
blank and perfectly legal to purchase and transport in interstate
commerce. Thus, this disk constitutes the government sole
jurisdictional link to § 2252(a), as it was the only 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 conceded to Selseth’s
reguest to strike § 2252(d) from the indictment.
II. STANDARD OF REVIEW

A proper indictment serves three functions. It states all
elements of the charged offense, informs defendants of the nature
of the charge, and enables defendants to plead double jeopardy as
a bar to repeated prosecution for the same offense. United States
v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985). The indictment is
not tested on the strengths or weaknesses of the government’s case.
It is examined solely for its sufficiency in charging the offense.
United States v. Risk, 843 F. 2d 1059, 1061 (7th Cir. 1988).

III. DISCUSSION

In his reply brief, Selseth conceded that, under United States

v. Angle, 234 F.3d 326 (7th Cir. 2000), § 2252(a) on its face does

not constitute an unconstitutional exercise of Congress’s Commerce


has agreed to strike all references in the indictment to § 2252(d),
but contends that under Seventh Circuit precedent, Selseth has no
constitutional claim concerning § 2252(a). For the reasons stated
below, the Court GRANTS the effectively agreed motion to strike all
references to § 2252(d) in the indictment. The Court also GRANTS
Selseth’s motion to strike the indictment in its entirety.
I. FACTUAL BACKGROUND

On April 7, 1999, a Grand Jury indicted Selseth on five counts
of violating 18 U.S.C. § 2252(a) and 18 U.S.C. § 2252(d). Each
indictment concerned a single “.jpg” document (a file-format used
for storing graphical depictions) containing a single image.
Selseth contends, and the government does not deny, that these
images were produced in the State of Illinois more than five years
ago. Since that time, the images have never left the State of
Illinois. The sole alleged minor depicted in the images lived in
Illinois when the images were produced, and did not cross state
lines at any time to facilitate production of the images.
Furthermore, the government does not contend that Selseth ever
sought to transport this disk out of the State of Illinois.
Therefore, with respect to the depictions themselves, the
government acknowledges no hook to interstate commerce.

Instead, the government attempts to prosecute Selseth based on

the medium containing the five images. Specifically, the images


IN THE UNITED STATES DISTRICT court j L E D

FOR THE NORTHERN DISTRICT OF ILLINOI
EASTERN DIVISION

MAR 1 9 2004
JUDGE HARRY D. LE!
UNITED STATES OF AMERICA, US, DISTRICT COURT Jubee
Plaintiff, Case No. 03 CR 1043

v. Hon. Harry D»..Lei
we a

REID SELSETH,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Reid Selseth (“Selseth”) was indicted on five counts
of violations of 18 U.S.C. 2252(a) and 18 U.S.C. 2252(da).
Section 2252(a) prohibits production of child pornography when the
defendant a) “knows or has reason to know” that the depiction will
be transported in interstate commerce; b) the visual depiction has
actually been transported in interstate commerce; or c) the visual
depiction was produced using materials that were transported in
interstate commerce. Section 2252(d) is more limited, prohibiting
only the possession of visual depictions of child pornography that
actually travel in interstate commerce or that the accused intended
would travel in interstate commerce. Selseth now moves to dismiss
the indictment in its entirely, on the grounds that the conduct
alleged did not violate § 2252(d), and that § 2252(a) is

unconstitutional as applied to him. The government, in response,


regulated interstate market for child pornography.” It is possible
that, had MeCoy and Corp come up before the Seventh Circuit, and
the Seventh Circuit elected to use the Angle standard, that it
still would have ruled exactly the same - given the peculiar fact
circumstances in each case. After all, the “victims” in McCoy and
Corp were the defendants’ own girlfriend and daughter,
respectively. In addition, the pictures were strictly for personal
use, and defendants neither traded or intended to trade them on
even an intrastate market. It is therefore likely that these

defendants, would not meet even the Angle threshold of engaging in

conduct that bears a “substantial relationship “interstate
market.”

Iv. CONCLUSION

For the foregoing reasons, the Cour ITS Defendant’s

motion to dismiss his indictment in it

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

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