* The Honorab le Ann Aldrich, United States District Judge for the

No rthern D istrict of O hio, sitting b y design ation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0292P (6th C ir.) File Name: 04a02 92p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

L ONNY J. ANDREWS , Defenda nt-Appel

lant. X - - - -
> , - - N No. 03-5088

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 02-00105—Karl S. Forester, Chief District Judge.

Submitted: March 10, 2004 Decided and Filed: September 2, 2004

Befor e: BOGG S, Chief Judg e; DAUGH TREY, Circ uit Judge; ALDRI CH, District Judge. *

_________________ COUNSEL

ON BRIE F: Richard R. Melville, PRATT & MEL VIL LE, Lexington, Kentucky, for

Appellant. Charles P. Wisdom, Jr., 2 United Sta tes v. And rews No. 03-5088

Mark A. Wohlander, John Patrick Grant, ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.

_________________

OPINION

_________________ MARTHA CRAIG DAUGHTR EY, Circuit Judge. The defenda nt, Lonny Andrews, was convicted on 27 counts of a 28-count in d ictment that charged him with the production, receipt, and possession

of child pornography , in violation of 18 U.S.C. §§2251(b), 2252(a)(2), and 2252(a)(4)(B )
re sp ec ti ve ly. Under count 28, he was ordered to forfe it items and equipment utilized in committing those offenses. On appeal, he challenges only his convictions on the first two counts, contending that §2251(b) is unconstitutional as applied to him because the government failed to es tablish a sufficient nexus betw een his a

lleged activitie s and inte

rstate
or foreign commerce, there by depriving

the district court of jurisdiction to try the case . He also argues that the di strict court erred i n permitti

ng the in

troductio n of cer

tain photogr aphs. We find no b asis o n wh ich to overturn the jury ’s verdi ct and af

firm.

FACTUAL AND PROCEDURAL BACKGROUND

The record

inthis case establishes that defendant Andrews lived in a four-bed

ro om tr ai le r i n N ic ho la sv il le , K en tu ck y, with his wife, his seven-ye ar-old step-daughter, and the couple’s two-year

-old daughter. In Ma

y 20 02, his two

nieces, aged 12 and 16, came to A

ndrews’ s home fr

om Alabama to spend the summer. Ap pa re nt ly, the 16-y ear-ol d left the

house with the defendant’s wife at vario us times, leaving Andrews inthe house with the other children. On one occasion , he took advantage of their absence to show the s even-y

ear-ol d and the 12-y ear-ol d a “video of na ked peop le” eng aged in sexual relation s. After th e two children watched the video,No. 03-5088 United Sta tes v. And rews 3

Andrews told them that he wa

nted them to do similar

thin gs with him and forced his step-daughter to perf ormoral sex on him. At another time, Andrews showed the girls a picture of
a “naked teenager”

from his computer’s “pic ture gallery ,” telling them that he had received the picture f rom a friend.

Andrews had purc

hased a small “pen camera” at Wal-Mart that he could use to produce photographs on his computer
screen. Andrews taught his niece and step -daugh ter how to
use th e pen came

ra and, on two occ asions, he told them to take pictures of each other’s “p riva tes” while they we re naked. The first time, Andrews watched his niece take pictures of his step-daughter. After the girls took the pictures of each other, Andr

ews load ed the pictures into

his computer’s “pictur

e gall e ry.” The se pictures could also be uploaded onto the Internet, although the re was no evi denc e presented at trial that Andrews actually did so. Andrews frightened

the two children into silence by thre ateningthat “if [t he y] ever told on him that he – that he would go to jail and it would be all [their] fault and that he would beat [them].”

Nevertheless, the young er of the two

nieces a pparent ly confided in her old

er sister , who then

told Andre

ws’s w i fe, St ac y, that the 12-yea

r-old had somethi ng to te ll her. From her ensuing convers ation with

th e 1 2-year

-old, Stacy An drews learned that her husband was making the t w o children take sexua

lly e xplicit photo s o f ea ch other with the pencamera. She contacted the local sheriff’s office and filed a petition for an emergency protective order on behalf of the children. The order was granted a nd, as a result of

its directive, Lonny

Andrews was removed from the residenc e.
After the defendant’s depart

u re, the sheriff searched the trailer with Stacy’s consent and se i zed various i tems, i ncluding the defendant’s computer, some compact disks , hard disk drives, and the pen camera – all of which had been
manufacture d

or acquired from out-of-state or abroa d. During the search, a detectiv e examined Andrews’s computer there
onthe prem

ises, ope ned some e lectron

ic fil es, and found 4 United Sta tes v. And rews No. 03-5088

“visual depict ions,” each of which was described in the indictmentas involving “a m in or female engag ed in the lascivious exhibition of her genitals or pubic area.” The hard drive on Andrews’s computer also contained 107 photographs of his niece a

nd his step-da

ughter , mostly

of the g irls’ ge

nitals and buttocks, that Andr

ews had d

irected th e girls to take of each other using his pen camera

. The detective found

the pen camera attached to Andrew s’s computer. Nearby , he also found a compact disk containing
over 200 pornographic images of unidentified pr epubescent girls, defined as under the age of 12. Research verified that these i mages were available on the I nternet and could be downloaded

onto a disk using the disk “burner” found among the defendant’s computer equipment. They appeared to have been dow nl oad ed f

rom th e In terne t in December 1999 and January 2000. Once, in the fal l of 2000, almost two years before the events at

issue here took place, Stacy Andrews was using the computer and happened upon a n image of a young, nude child. According to her testimony at trial, she told her husband to remove the image from the computer or she wo uld “throw the computer out in the front y ard.” Lonny Andrews testified at trial, deny ing that he had enticed his niece or

his step-da

ughter to use his p en came

ra to take the pornographic photos. He also denied uploading their pictures onto the computer or the internet, or downloading the pornog raphic images of prepu bescent girls onto the compact disk . Beca use the f ile on the

compact disk was labeled “Jimmy,” he argued that a friend of his named Jim must have downloaded

the images while he was stay ing at the Andrews house. The jury

nevertheless convicte d the def endant on all 27 counts of

the indic tment, pre sumably finding that his te stimony was not credible , and the d istrict c ourt impose d consecutive sentenc es totalin g 405 y ears, pu rsuant to sentencingguideli

nes manda

ted by Congre ss as par

t o f the Sex Crimes Agains t Children Preventi on Act, and enhanced by a finding that Andrews had obstructed justice by testify ing falsely at tr i al. The d

efenda nt now app eals only

hisNo. 03-5088 United Sta tes v. And rews 5

convictions for the production of child p ornogr aphy in violation of 18 U.S.C . § 2251(b ), as set out in coun

ts one and two of the indictment.

DISCUSSION

At the time of Andrews’s trial, § 2251(b) provided as follows: Any pare nt, legal guardian, or person ha ving custody or control of a minor who knowingly pe rmits such minor

to engage in, or to assist any other per son to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished

as provided under subsection (d) of this section, if such parent, legal g

uardian , or pers on knows or has rea son to know that such

visual de

picti on wi ll be tran sported i n intersta te or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed,

shipped, or transported in interstate or foreign comm erce by

any mea ns, including by computer, or if such visual depiction has actua lly been transported

in interstate or for eign commerce or mailed (emphasis added).

Federaljurisdiction over the offenses charge d in counts one and two was based on the fact that Andrews purcha se d his computer from New

Jersey and that the

pen camera was made inChina. Andrews does not argue that § 22 51 (b) is fa cially unconstituti onal, instead contending that it is unconstitutional under the Commer

ce Clause as applie d to him bec ause his activities did not substantially relate to interstate c ommerce. Questions of federal jurisdiction are reviewed de novo by

this court. See United Sta tes v. Bro wn , 276 F. 3d 211, 214 ( 6th Cir. 2002), cert. denied, 535 U.S. 1079 (2002).

Andrews relies a

lmost exclus ively

on our opinion in United States v. Corp , 236 F.3d 325 (6th Cir. 20 01), t o support h is argument that § 2251 (b) is unconstitutional as applied to the 6 United Sta tes v. And rews No. 03-5088

facts of this ca se. Corp w as a 23-year -old defendant

who was prosecuted

under 18 U.S.C. §22 52(a)(4)(B) for possessing child pornography , consisting of photographs of his 17-yearold girlfr iend and h

is 26-y ear-ol d wife engaged

in consensual sexual activity. Id. at 326. Section 22 52(a )(4)(B) provides that an offender will be punished if he or she

. . . knowingly pos se sses 1 or more book s, maga zines, periodic als, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or f oreign commerce, or which

was prod uced usin g mat erials which have been mailed or so shipped or tra nsported, by any means including by

computer, if-- (i) the producing of such visual depiction inv olve s the use of a m

inor eng aging

in sexually

explicit conduct; and (ii) such visual depiction is of such conduct[.]

Federaljurisdiction in Corp was alleged t o ari se from the fact that the photographic p aper on which the pornography
was produced had been manufact ured out- of-state, specific ally

in Ge rm an y. Corp , 236 F.3d at 326. Corp argued that the statue was unconstitutiona

l on its face and as applied inhis case because it exceeded

Congre ss’s Comme

rce Clau se powers. Id. at

327. In reviewing

this claim, the Corp court applied the framework developed by the Supr e me Court in United States v. Lopez , 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act because Congress exceeded its power under the Commerce Clause), and in United States

v. Morrison , 529 U.S. 5 98 (2000)(striking down the c ivil remedy provision of the Violence Against Women Act as unconstitutional under the Commerce Clause) , to hold that §2252(a)(4)(B) was facially constitutional. See Corp , 236 F.3d at 331-332. On the other hand, the court also held that because the defendant’s activity

was not substantially related to intersta

te commer

ce, the s tatute wa s unconsti tutio nal a sNo. 03-5088 United Sta tes v. And rews 7

applied to the facts in his case. But in doing so, the court emp hasized

that those facts were unique and that Corp ’ s conduct was not the t ype of ac

tivity that Congress had intended to prohibi

t:
Under the undisputed circumstances here, Corp was not involved, nor inten

ded to be i

nvolved, inthe distribution
or sharing wit h o thers of the pictures in question. Sauntman[the seven

teen-ye ar-old] was not an "exploited child" nor a victim in any real an d practi cal sens e in this
case. In the other

cases that have addressed this issue, the courts w ere faced with the much more threa tening situation where an adult was takin g advan tage of a much younge r chil d or using the imagery for abusive or semi-commercial purposes . . . . Corp was no t all ege d to be a pedophile nor was he alleged to ha ve be en ill ega

lly sexu al ly in

volved wi

th minors other than

Saunt man, who was merely months away from reaching

majority. Clearly

, Corp was not the typical offender fea

red by Congre ss that wou

ld become addicted to pornography

and perpetuate the industry

via intersta te connections. Under these circumstances, t h e government

has failed to make a showing that Corp's sort of activity would subs tantially

affec t intersta

te
commerce. Corp , 236 F.3d at 332-33.
Moreover, the Co rp opinion contains a s ugge stion that i

n future cases, c ourts sh oul d undertake the following examination in order

to ensure that the jurisdictional reach of the statute is properly c ircumscribed:

Was the activity in this case re latedto explicit an d graph ic pi ct ur es of

ch il dr en en ga ge d i n s ex ua l a ct iv it y, par ticularl

y children about fourteen y ears of age or under, for commercial or exploitive purpo ses? Were there multiple c hi ldren so pictured? Were the children 8 United Sta tes v. And rews No. 03-5088

1 As the Second Ci rcui t not ed in Un it ed Stat es v. Holst

on , 343 F. 3d 83, 88-90 (2nd C ir. 2003), Congress has made legislat ive fi ndings documen ting that “there is an exte nsive co mm ercial m arket in c hild pornography and th at muc h of the m aterial tha t feeds this m arket is ‘hom egro wn,’ that

is, produced by amateur photog raphers . . . . Becau se
mu ch of th e child pornography that concerned Congress is homegrown, untrac eable, and enter s the nati onal market surre ptit iousl y , we concl ude that Congress, in an a ttempt to hal t in ters tate traf

fick ing, can prohibi t local product ion that f

eeds the nati onal market and stim ulates d ema nd, as th is pro duc tion sub stantially affec ts interstate c omm erce.” otherwi se sexually abused? Was there a record that defendant repeatedly

engaged in such conduct orother sexually abusive conduct with children? Did defendant
move from plac e to plac e, or sta te to state, a

nd repea tedly engage in productionof

such pict ures of c hildren? The se questi ons a re relevant to a determination on a case-by- casebasis abo

ut whethe r the ac tivity

involved in a certain case had a substantial eff ect on commerce.
Id. at 333.

Alth ough not all the Corp questions are pertinent here, an inquiry along the lines it sug

gests produces a stark distinction between the facts in Corp and the facts in this case. Andrews
was clearly

involved i

n exactl y the t ype of child-e

xploitive and abusive b ehavio r that Congre ss sough t to prohib it in § 2251(b), using computer equipment that had been shipped ininterstate commerce. Andrews first forc ed two children aged 12 and under to watch

sexually explicit photographs that presuma bly had been transmitted ove r interstate lines. He thencompelle d them to engage in and to photogr aph similar
sexua l ly explicit behavior, undoubtedly for the purpose of t ransmitting those photographs in the same manner. 1 T h e children were vu lnerabl e not only

bec ause of their age but also because

they were

under his care and control at the time,
and t heir cooperation was clearly the result of coercion and outright threats t o their safety . In a

ddition, An

drews wa s in possession of several hundred pornogra phi c photographsNo. 03-5088 United Sta tes v. And rews 9

2 Although the defendant did not object to the int roduct ion of Ex hibit 4, he later moved for a judgment of ac quit tal based onthe fact that “[t ]he da tes of down loadi ng of some of the PenCam pic tur es on J uly the 11 t h and July14th were af ter t he defendant

had been vacated from the resi dence, and th e testim ony was that he hadn’t been back.” The co urt denied the motion. depicting unidentified

children who appeared to be under the age of 12. As early a s two years be fore his arrest on the s e charg es, his wife had seen the pornographic image of a child on his computer. Given the scope of the evidence in the rec ord, we have no doubtthat the gover

nme nt established a sufficient nexus between the activity descr

ibed in the first two counts of the indictmentand interstate commerce to establish jurisdiction inthis case. We th erefore find no merit to the defendant’s argument tha t § 2 251(b) w as uncon stitutiona l as applie d to th at ac ti vi ty.

Nor do we fin

d reversible error in connection with the admission into evidence of Exhibit 4, which consisted of the sexually explicit photos of Andrews’s seven -year-old stepdaughter and his 12-year- old niece. Because Andrews did not object to the introduction of the photos at trial, we review the adm ission of the photos only for plain er ror. 2 See Unit

e d States v. Cowart, 90 F.3d 154, 157 (6th Cir. 19 96); F ED

. R. E VID

. 103(d) ( “Nothing

inthis rule precludes taking noticeof plain errors affec ting subs tantial r

ights altho ugh they were

not brought to the attention of the court.”). He complains that the detective who seized

his comput

er tampe red with the photos, based on the fact tha

t the da tes on some of the photographs had been altered w hen the files were examined at his home. However, there is no other evidenceto suggest tampering, and t h e detective’s testimony that he ha d not altered the photog raphs could hav e been d iscredit ed on cro ssexamination but was no t. The jury clear ly found cre dible the detective’ s t estimony that no alteration had oc curred. Without
a timely objection and the p

roduction of some e

vidence to 10 United Sta tes v. And rews No. 03-5088

sugge st that the photographs were unr eliab le, the district court cannot be cha rged w

ith committi

ng err or in fail ing to intervene sua sponte to prevent their introd ucti on into eviden ce, or in declin

ing to or der a ne w trial on

the same basis.

CONCLUSION

For the reasons set outabove, we AFFI RM the judgment of the distri ct court

in all res pects.