FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50162 Plaintiff-Appellee,

D.C. No.

v.  CR-06-00384-DSF-1

GEOFFREY DAVID MCCALLA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Submitted July 15, 2008*

Pasadena, California

Filed September 24, 2008

Before: Barry G. Silverman, Johnnie B. Rawlinson, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Rawlinson

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

13587
COUNSEL

Shannon M. Dorvall, Santa Monica, California, on behalf of

defendant-appellant Geoffrey David McCalla. 

Thomas P. O’Brien, Christine C. Ewell, Rupa S. Goswami,

Los Angeles, California, on behalf of plaintiff-appellee

United States of America. 

UNITED STATES v. MCCALLA 13589
OPINION

RAWLINSON, Circuit Judge: 

Appellant Geoffrey David McCalla (McCalla) was charged

in a two-count indictment with producing and possessing

child pornography in violation of federal statutes. McCalla

filed two motions to dismiss the indictment for lack of jurisdiction and the district court denied both. McCalla pled guilty

to Count One charging production of child pornography, conditioned only upon his ability to appeal the denial by the district court of his motion to dismiss under the Commerce

Clause. On appeal, McCalla argues lack of federal jurisdiction

under the Commerce Clause and lack of federal territorial

jurisdiction under 18 U.S.C. § 7. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court’s rulings on

both motions to dismiss. 

I. BACKGROUND

In December, 2005, John B. Kuzma (Kuzma), Special

Agent with the Department of Homeland Security (DHS),

United States Immigration and Customs Enforcement (ICE),

began investigating McCalla’s possible use of a child pornography website. In the course of his investigation, Kuzma

learned that McCalla had been arrested by the Los Angeles

Police Department (LAPD) after a witness reported discovering images in McCalla’s house depicting child pornography.

The images showed the witness’s step-daughter (Child Victim 1), who appeared to be approximately five years old, as

well as other children, engaging in sexually explicit conduct.

In addition to these images, numerous other images depicting

child pornography were retrieved from materials seized during a search of McCalla’s residence and place of employment.

Approximately 4,235 suspected child pornography images

were recovered from standard file directories in McCalla’s

13590 UNITED STATES v. MCCALLA
work computer’s hard drive. Approximately 50 suspected

child pornography movie files were also recovered. 

Following his arrest and the discovery of these images, a

federal grand jury returned a two-count indictment against

McCalla. Count One charged McCalla with the production of

child pornography in violation of 18 U.S.C. § 2251(a), (e).

Count Two charged McCalla with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Id. at 13.

Both counts included the jurisdictional requirement that the

child pornography produced or possessed by McCalla was

“produced using materials that had been mailed, shipped, and

transported in interstate and foreign commerce by any means,

including by computer . . . ” 

McCalla filed two motions to dismiss the indictment. In the

first motion, McCalla argued lack of subject matter jurisdiction, specifically contending that the Commerce Clause did

not grant Congress authority to regulate local production of

child pornography. The district court rejected this argument,

noting that in light of the Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1, (2005), regardless of prior Ninth

Circuit rulings, “the Ninth Circuit would now take the position that this statute was valid.” 

McCalla filed a subsequent motion to dismiss, arguing the

absence of federal territorial jurisdiction because the events

did not occur within the exclusive territory of the United

States. The district court also denied this second motion.

Thereafter, McCalla entered into a conditional plea agreement with the government whereby he pled guilty to Count 1

of the indictment (production of child pornography). The plea

agreement was conditioned upon McCalla’s reservation of the

right to seek appellate review of the district court’s denial of

the motion to dismiss “filed on or about August 11, 2006 [the

Commerce Clause argument].” 

UNITED STATES v. MCCALLA 13591
In the plea agreement, the parties stipulated to several facts,

including: 

• Beginning in or around January, 2003, and continuing to in or about September, 2004, McCalla

took approximately 45 sexually explicit photographs of Child Victim 1. 

• McCalla produced the pornographic images of

this child using materials that had been mailed,

shipped, or transported in interstate or foreign

commerce. In particular, McCalla used a Sony

digital camera that had been manufactured in

Japan and transported in interstate and foreign

commerce to California. 

• Two compact discs containing child pornography

that McCalla kept and used at home contained

child pornographic images of Child Victim 1. 

• Three compact discs containing child pornography that McCalla kept and used at work contained child pornographic images of Child Victim

1. 

The district court accepted the guilty plea, and sentenced

McCalla to 210 months’ imprisonment followed by a lifetime

of supervised release. McCalla timely appealed.

II. STANDARD OF REVIEW

“We review a district court’s denial of a motion to dismiss

an indictment on constitutional grounds de novo.” United

States v. Latu, 479 F.3d 1153, 1155 (9th Cir. 2007) (citation

omitted). 

13592 UNITED STATES v. MCCALLA
III. DISCUSSION

A. Commerce Clause Challenge

McCalla argues that Congress lacks authority under the

Commerce Clause to regulate the noncommercial and wholly

intrastate production of child pornography, and therefore, as

applied to him, 18 U.S.C. § 2251(a) is unconstitutional. 

McCalla makes two main arguments in support of his

claim. First, McCalla argues that the Supreme Court’s most

recent decision discussing the Commerce Clause, Gonzales v.

Raich, 545 U.S. 1 (2005), was wrongly decided and applies

an incorrect legal standard of review. Second, McCalla argues

that analyzing Section 2251(a) utilizing the factors articulated

by the Supreme Court in United States v. Morrison, 529 U.S.

598 (2000), reveals the statute’s unconstitutionality. 

To the extent McCalla premises his argument on an invitation to set aside or disregard United States Supreme Court

precedent, we simply cannot accommodate him. As the

Supreme Court has expressly stated, “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v.

Khan, 522 U.S. 3, 20 (1997). Accordingly, in determining

whether prosecution of the intrastate production of child pornography is authorized under the Commerce Clause, we are

bound by the Supreme Court’s decision in Raich. 

Raich addressed the question of whether the Controlled

Substances Act (CSA) was unconstitutional as applied to

purely intrastate producers of marijuana for medical purposes

under California’s Compassionate Use Act. 545 U.S. at 5. The

Supreme Court reiterated that there are three general categories of activity that Congress’s commerce power gives it the

authority to regulate. “First, Congress can regulate the channels of interstate commerce. Second, Congress has authority

to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third,

UNITED STATES v. MCCALLA 13593
Congress has the power to regulate activities that substantially

affect interstate commerce.” Id. at 16-17 (citations omitted).

It is this third category that was implicated in Raich, see id.

at 17, and which also is at issue in this case. 

[1] The Supreme Court ultimately held that the application

of CSA provisions criminalizing the intrastate manufacture,

distribution or possession of marijuana did not violate the

Commerce Clause. Id. at 9. In reaching this holding, the Raich

court established several important principles that guide our

decision. First, the Court reiterated that “[i]n assessing the

scope of Congress’ authority under the Commerce Clause, . . .

the task before [the Court] is a modest one. [The Court] need

not determine whether respondent[ ]’s activities, taken in the

aggregate, substantially affect interstate commerce in fact, but

only whether a ‘rational basis’ exists for so concluding.” Id.

at 22, citing United States v. Lopez, 514 U.S. 549, 557 (1995)

(emphasis added) (parallel citation omitted). 

[2] In Raich, the Court reasoned that “[g]iven the enforcement difficulties that attend distinguishing between marijuana

cultivated locally and marijuana grown elsewhere . . . , and

concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for

believing that failure to regulate the intrastate manufacture

and possession of marijuana would leave a gaping hole in the

CSA.” Id. (citation and footnote reference omitted). The

Raich court also noted “[t]hat the regulation ensnares some

purely intrastate activity is of no moment. As we have done

many times before, we refuse to excise individual components

of that larger scheme.” Id. In reaching its holding that application of the CSA to purely intrastate production of marijuana

was within Congress’ authority under the Commerce Clause,

the Supreme Court distinguished the CSA from those statutes

that it struck as unconstitutional in Lopez (holding that the

Gun-Free School Zones Act was an invalid exercise of Congress’ Commerce Clause authority) and Morrison (striking

the Violence Against Women Act). The Court distinguished

13594 UNITED STATES v. MCCALLA
Raich from Lopez and Morrison in part based on the fact that

in those cases, the statutes in question had no connection to

commerce or economic enterprise. Raich, 545 U.S. at 23-25.

In contrast, the CSA is “a comprehensive framework for regulating the production, distribution, and possession of five

classes of ‘controlled substances’ ” most of which “have a

useful and legitimate medical purpose . . .” Id. at 24. “The

regulatory scheme is designed to foster the beneficial use of

those medications, to prevent their misuse, and to prohibit

entirely the possession or use of substances listed in Schedule

I, except as a part of a strictly controlled research project.” Id.

The Supreme Court emphasized that “[u]nlike those at

issue in Lopez and Morrison, the activities regulated by the

CSA are quintessentially economic. ‘Economics’ refers to

‘the production, distribution, and consumption of commodities.’ ” Id. at 25 (citation omitted). The court noted that

“[p]rohibiting the intrastate possession or manufacture of an

article of commerce is a rational (and commonly utilized)

means of regulating commerce in that product.” Id. at 26

(footnote reference omitted). The Court concluded that

“[b]ecause the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no

doubt on its constitutionality.” Id.

In reaching this conclusion, the Raich Court rejected the

appellants’ argument that the cultivation of homegrown medical marijuana represented a “ ‘separate and distinct’ class of

activities . . . beyond the reach of federal power.” Id. The

Court determined that not only was this purported class not

exempt from inclusion in the CSA, but it was “an essential

part of the larger regulatory scheme.” Id. at 26-27. 

[3] The Supreme Court’s reasoning in Raich supports a

conclusion that the challenged statute in this case is not

unconstitutional because it criminalizes the production of

“homegrown” child pornography. Here, as in Raich, the statute is comprehensive in that it seeks to regulate (more accuUNITED STATES v. MCCALLA 13595
rately, exterminate) the entire child pornography market

(similar to at least one category of the CSA — marijuana).

See United States v. Maxwell, 446 F.3d 1210, 1217 n.7 (11th

Cir. 2006). Moreover, as in Raich, the statute addresses a

commodity — child pornography — which, Congress found,

“[has] become [a] highly organized, multimillion dollar

industr[y] that operate[s] on a nationwide scale.” S. Rep. No.

95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42,

1977 WL 9660. 

[4] Following the reasoning in Raich, the task before us

then is to determine “whether Congress could rationally conclude that the cumulative effect of the conduct by [McCalla]

and his ilk would substantially affect interstate commerce —

specifically the interstate commerce Congress is seeking to

eliminate.” Maxwell, 446 F.3d at 1218. As the Eleventh Circuit in Maxwell concluded, “[v]iewed in this light, there is

nothing irrational about Congress’s conclusion, supported by

its findings, that pornography begets pornography, regardless

of its origin.” Id.

Other circuits considering this issue post-Raich have

agreed. The Fourth Circuit noted that “[j]ust as Congress

rationally concluded that demand might draw homegrown

marijuana into interstate markets, thereby ‘frustrating the federal interest in eliminating commercial transactions in the

interstate market in their entirety,’ so too might Congress

rationally fear that homemade child pornography would find

its way into interstate commerce.” United States v. Forrest,

429 F.3d 73, 78 (4th Cir. 2005), quoting Raich, 545 U.S. at

19 (alteration omitted); see also United States v. Chambers,

441 F.3d 438, 442, 454-55 (6th Cir. 2006) (rejecting an asapplied challenge to § 2252, prohibiting transportation of

child pornography); United States v. Blum, 534 F.3d 608, 609,

611 (7th Cir. 2008) (upholding § 2251, noting that “Congress

in enacting [§ 2251] recognized the danger posed by any child

pornography regardless of origin . . .”); United States v.

Mugan, 441 F.3d 622, 629-30 (8th Cir. 2006) (reaching same

13596 UNITED STATES v. MCCALLA
conclusion without citing Raich); United States v. JeronimoBautista, 425 F.3d 1266, 1272-73 (10th Cir. 2005) (upholding

constitutionality of § 2251 as applied to purely intrastate production); United States v. Sullivan, 451 F.3d 884, 890 (D.C.

Cir. 2006) (upholding constitutionality of child pornography

possession statute). 

[5] Given Congress’s broad interest in preventing sexual

exploitation of children, it is eminently rational that Congress

would seek to regulate intrastate production of pornography

even where there is no evidence that it was created for commercial purposes. See United States v. Ortiz-Graulau, 526

F.3d 16, 19 (1st Cir. 2008) (“preventing exploitation of children could be aided by the statute’s broad ban on taking such

photographs even for private use”) (citation omitted). Indeed,

in enacting the Child Pornography Prevention Act, Congress

specifically expressed the idea echoed by the 11th Circuit in

Maxwell that child pornography begets more child pornography regardless of its origin: “the existence of and traffic in

child pornographic images . . . inflames the desires of child

molesters, pedophiles, and 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 . . .” Pub. L. No. 104-208, § 121,

1996 HR 3610, 110 Stat. at 3009-27. 

[6] Because it is rational to conclude that homegrown child

pornography affects interstate commerce, we “need not

inquire into the specifics of [McCalla’s] possession: when a

general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising

under that statute is of no consequence.” United States v.

Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006) (citation, alteration and internal quotation marks omitted). 

McCalla’s reliance on our decision in United States v.

McCoy, 323 F.3d 1114, 1117 (9th Cir. 2003), a case in which

UNITED STATES v. MCCALLA 13597
we found unconstitutional the application of § 2252 to a

mother who possessed a single photograph in which she and

her child appeared partially nude, is misplaced. McCoy

involved possession of child pornography, rather than its production. Moreover, to the extent the reasoning employed in

McCoy relied on the local nature of the activity, it has been

overruled by the Supreme Court’s decision in Raich. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003), en banc

(“We hold that the issues decided by the higher court need not

be identical in order to be controlling. Rather, the relevant

court of last resort must have undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable.”). 

[7] Because McCalla’s Commerce Clause arguments are

unavailing, we affirm the district court’s denial of McCalla’s

motion to dismiss on this basis.

B. Territorial Jurisdiction

[8] Citing 18 U.S.C. § 7, McCalla raises the argument that

federal courts are without jurisdiction over matters that do not

occur exclusively in federal territory. This argument is wholly

without merit. The federal court’s jurisdiction is not limited

to federal crimes committed on federal lands. Pursuant to 18

U.S.C. § 3231, “[t]he district courts of the United States have

original jurisdiction, exclusive of the courts of the States, of

all offenses against the laws of the United States.” (Emphasis

added). See also United States v. Begay, 42 F.3d 486, 499 (9th

Cir. 1994) (holding that where situs is not an element of the

offense, federal criminal statutes apply “equally to everyone

everywhere within the United States”).

IV. CONCLUSION

Regulation of intrastate production of child pornography

within the context of eliminating the national child pornography industry is a valid exercise of Congress’s authority under

13598 UNITED STATES v. MCCALLA
the Commerce Clause. Application of this statute to McCalla

was not unconstitutional. Jurisdiction to enforce § 2251(a) is

not limited to federal enclaves as argued by McCalla. Accordingly, we uphold the district court’s denials of both motions

to dismiss the indictment. 

AFFIRMED.

UNITED STATES v. MCCALLA 13599