*

The Honorable Ann Aldrich, United States District Judge for the

Northern District of Ohio, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0292P (6th Cir.)

File Name: 04a0292p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LONNY J. ANDREWS,

Defendant-Appellant.

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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 

Before: BOGGS, Chief Judge; DAUGHTREY, Circuit

Judge; ALDRICH, District Judge.*

_________________

COUNSEL

ON BRIEF: Richard R. Melville, PRATT & MELVILLE,

Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr.,

2 United States v. Andrews No. 03-5088

Mark A. Wohlander, John Patrick Grant, ASSISTANT

UNITED STATES ATTORNEYS, Lexington, Kentucky, for

Appellee.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. The

defendant, Lonny Andrews, was convicted on 27 counts of a

28-count indictment 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)

respectively. Under count 28, he was ordered to forfeit 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 establish a

sufficient nexus between his alleged activities and interstate

or foreign commerce, thereby depriving the district court of

jurisdiction to try the case. He also argues that the district

court erred in permitting the introduction of certain

photographs. We find no basis on which to overturn the

jury’s verdict and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The record in this case establishes that defendant Andrews

lived in a four-bedroom trailer in Nicholasville, Kentucky,

with his wife, his seven-year-old step-daughter, and the

couple’s two-year-old daughter. In May 2002, his two nieces,

aged 12 and 16, came to Andrews’s home from Alabama to

spend the summer. Apparently, the 16-year-old left the house

with the defendant’s wife at various times, leaving Andrews

in the house with the other children. On one occasion, he

took advantage of their absence to show the seven-year-old

and the 12-year-old a “video of naked people” engaged in

sexual relations. After the two children watched the video,
No. 03-5088 United States v. Andrews 3

Andrews told them that he wanted them to do similar things

with him and forced his step-daughter to perform oral sex on

him. At another time, Andrews showed the girls a picture of

a “naked teenager” from his computer’s “picture gallery,”

telling them that he had received the picture from a friend. 

Andrews had purchased a small “pen camera” at Wal-Mart

that he could use to produce photographs on his computer

screen. Andrews taught his niece and step-daughter how to

use the pen camera and, on two occasions, he told them to

take pictures of each other’s “privates” while they were

naked. The first time, Andrews watched his niece take

pictures of his step-daughter. After the girls took the pictures

of each other, Andrews loaded the pictures into his

computer’s “picture gallery.” These pictures could also be

uploaded onto the Internet, although there was no evidence

presented at trial that Andrews actually did so. Andrews

frightened the two children into silence by threatening that “if

[they] 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 younger of the two nieces apparently

confided in her older sister, who then told Andrews’s wife,

Stacy, that the 12-year-old had something to tell her. From

her ensuing conversation with the 12-year-old, Stacy

Andrews learned that her husband was making the two

children take sexually explicit photos of each other with the

pen camera. 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 and, as a result of its

directive, Lonny Andrews was removed from the residence.

After the defendant’s departure, the sheriff searched the

trailer with Stacy’s consent and seized various items,

including the defendant’s computer, some compact disks,

hard disk drives, and the pen camera – all of which had been

manufactured or acquired from out-of-state or abroad. During

the search, a detective examined Andrews’s computer there

on the premises, opened some electronic files, and found

4 United States v. Andrews No. 03-5088

“visual depictions,” each of which was described in the

indictment as involving “a minor female engaged in the

lascivious exhibition of her genitals or pubic area.” The hard

drive onAndrews’s computer also contained 107 photographs

of his niece and his step-daughter, mostly of the girls’ genitals

and buttocks, that Andrews had directed the girls to take of

each other using his pen camera.

The detective found the pen camera attached to Andrews’s

computer. Nearby, he also found a compact disk containing

over 200 pornographic images of unidentified prepubescent

girls, defined as under the age of 12. Research verified that

these images were available on the Internet and could be

downloaded onto a disk using the disk “burner” found among

the defendant’s computer equipment. They appeared to have

been downloaded from the Internet in December 1999 and

January 2000. Once, in the fall of 2000, almost two years

before the events at issue here took place, Stacy Andrews was

using the computer and happened upon an 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 would

“throw the computer out in the front yard.”

Lonny Andrews testified at trial, denying that he had

enticed his niece or his step-daughter to use his pen camera to

take the pornographic photos. He also denied uploading their

pictures onto the computer or the internet, or downloading the

pornographic images of prepubescent girls onto the compact

disk . Because the file on the compact disk was labeled

“Jimmy,” he argued that a friend of his named Jim must have

downloaded the images while he was staying at the Andrews

house. The jury nevertheless convicted the defendant on all

27 counts of the indictment, presumably finding that his

testimony was not credible, and the district court imposed

consecutive sentences totaling 405 years, pursuant to

sentencing guidelines mandated by Congress as part of the

Sex Crimes Against Children Prevention Act, and enhanced

by a finding that Andrews had obstructed justice by testifying

falsely at trial. The defendant now appeals only his
No. 03-5088 United States v. Andrews 5

convictions for the production of child pornography in

violation of 18 U.S.C. § 2251(b), as set out in counts one and

two of the indictment. 

DISCUSSION

At the time of Andrews’s trial, § 2251(b) provided as

follows:

Any parent, legal guardian, or person having custody or

control of a minor who knowingly permits such minor to

engage in, or to assist any other person 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 guardian, or person knows or has reason to

know that such visual depiction will be transported in

interstate or foreign commerce or mailed, if that visual

depiction was produced using materials that have

been mailed, shipped, 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

(emphasis added).

Federal jurisdiction over the offenses charged in counts one

and two was based on the fact that Andrews purchased his

computer from New Jersey and that the pen camera was made

in China. Andrews does not argue that § 2251(b) is facially

unconstitutional, instead contending that it is unconstitutional

under the Commerce Clause as applied to him because his

activities did not substantially relate to interstate commerce.

Questions of federal jurisdiction are reviewed de novo by this

court. See United States v. Brown, 276 F.3d 211, 214 (6th

Cir. 2002), cert. denied, 535 U.S. 1079 (2002).

Andrews relies almost exclusively on our opinion in United

States v. Corp, 236 F.3d 325 (6th Cir. 2001), to support his

argument that § 2251(b) is unconstitutional as applied to the

6 United States v. Andrews No. 03-5088

facts of this case. Corp was a 23-year-old defendant who was

prosecuted under 18 U.S.C. §2252(a)(4)(B) for possessing

child pornography, consisting of photographs of his 17-yearold girlfriend and his 26-year-old wife engaged in consensual

sexual activity. Id. at 326. Section 2252(a)(4)(B) provides

that an offender will be punished if he or she

. . . knowingly possesses 1 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 usingmaterials 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[.]

Federal jurisdiction in Corp was alleged to arise from the

fact that the photographic paper on which the pornography

was produced had been manufactured out-of-state,

specifically in Germany. Corp, 236 F.3d at 326. Corp argued

that the statue was unconstitutional on its face and as applied

in his case because it exceeded Congress’s Commerce Clause

powers. Id. at 327. In reviewing this claim, the Corp court

applied the framework developed by the Supreme 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. 598 (2000) (striking down the civil

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 interstate commerce, the statute was unconstitutional as
No. 03-5088 United States v. Andrews 7

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

emphasized that those facts were unique and that Corp’s

conduct was not the type of activity that Congress had

intended to prohibit:

Under the undisputed circumstances here, Corp was not

involved, nor intended to be involved, in the distribution

or sharing with others of the pictures in question.

Sauntman [the seventeen-year-old] was not an "exploited

child" nor a victim in any real and practical sense in this

case. In the other cases that have addressed this issue, the

courts were faced with the much more threatening

situation where an adult was taking advantage of a much

younger child or using the imagery for abusive or

semi-commercial purposes . . . . 

Corp was not alleged to be a pedophile nor was he

alleged to have been illegally sexually involved with

minors other than Sauntman, who was merely months

away from reaching majority. Clearly, Corp was not the

typical offender feared by Congress that would become

addicted to pornography and perpetuate the industry via

interstate connections. Under these circumstances, the

government has failed to make a showing that Corp's sort

of activity would substantially affect interstate

commerce. 

Corp, 236 F.3d at 332-33. 

Moreover, the Corp opinion contains a suggestion that in

future cases, courts should undertake the following

examination in order to ensure that the jurisdictional reach of

the statute is properly circumscribed:

 Was the activity in this case related to explicit and

graphic pictures of children engaged in sexual activity,

particularly children about fourteen years of age or

under, for commercial or exploitive purposes? Were

there multiple children so pictured? Were the children

8 United States v. Andrews No. 03-5088

1

As the Second Circuit noted in United States v. Holston, 343 F.3d

83, 88-90 (2nd Cir. 2003), Congress has made legislative findings

documenting that “there is an extensive commercial market in child

pornography and that much of the material that feeds this market is

‘homegrown,’ that is, produced by amateur photographers . . . . Because

much of the child pornography that concerned Congress is homegrown,

untraceable, and enters the national market surreptitiously , we conclude

that Congress, in an attempt to halt interstate trafficking, can prohibit local

production that feeds the national market and stimulates demand, as this

production substantially affects interstate commerce.”

otherwise sexually abused? Was there a record that

defendant repeatedly engaged in such conduct or other

sexually abusive conduct with children? Did defendant

move from place to place, or state to state, and repeatedly

engage in production of such pictures of children? These

questions are relevant to a determination on a

case-by-case basis about whether the activity involved in

a certain case had a substantial effect on commerce.

Id. at 333.

Although not all the Corp questions are pertinent here, an

inquiry along the lines it suggests produces a stark distinction

between the facts in Corp and the facts in this case. Andrews

was clearly involved in exactly the type of child-exploitive

and abusive behavior that Congress sought to prohibit in

§ 2251(b), using computer equipment that had been shipped

in interstate commerce. Andrews first forced two children

aged 12 and under to watch sexually explicit photographs that

presumably had been transmitted over interstate lines. He

then compelled them to engage in and to photograph similar

sexually explicit behavior, undoubtedly for the purpose of

transmitting those photographs in the same manner.1 The

children were vulnerable not only because of their age but

also because they were under his care and control at the time,

and their cooperation was clearly the result of coercion and

outright threats to their safety. In addition, Andrews was in

possession of several hundred pornographic photographs
No. 03-5088 United States v. Andrews 9

2

Although the defendant did not object to the introduction of Exhibit

4, he later moved for a judgment of acquittal based on the fact that “[t]he

dates of downloading of some of the PenCam pictures on July the 11th

and July 14th were after the defendant had been vacated from the

residence, and the testimony was that he hadn’t been back.” The court

denied the motion.

depicting unidentified children who appeared to be under the

age of 12. As early as two years before his arrest on these

charges, his wife had seen the pornographic image of a child

on his computer. 

Given the scope of the evidence in the record, we have no

doubt that the government established a sufficient nexus

between the activity described in the first two counts of the

indictment and interstate commerce to establish jurisdiction

in this case. We therefore find no merit to the defendant’s

argument that § 2251(b) was unconstitutional as applied to

that activity.

Nor do we find 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

admission of the photos only for plain error.

2

 See United

States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996); FED. R.

EVID. 103(d) (“Nothing in this rule precludes taking notice of

plain errors affecting substantial rights although they were not

brought to the attention of the court.”). He complains that the

detective who seized his computer tampered with the photos,

based on the fact that the dates on some of the photographs

had been altered when the files were examined at his home.

However, there is no other evidence to suggest tampering, and

the detective’s testimony that he had not altered the

photographs could have been discredited on crossexamination but was not. The jury clearly found credible the

detective’stestimony that no alteration had occurred. Without

a timely objection and the production of some evidence to

10 United States v. Andrews No. 03-5088

suggest that the photographs were unreliable, the district court

cannot be charged with committing error in failing to

intervene sua sponte to prevent their introduction into

evidence, or in declining to order a new trial on the same

basis.

CONCLUSION

For the reasons set out above, we AFFIRM the judgment of

the district court in all respects.