Panel Finds that Obamacare Commerce Clause Decision Did Not Affect the Validity of Child Porn Law Criminalizing Conduct Related to Only Intrastate Activity

United States of America v. Parton, No. 13-12612, from MDAl

 

Senior Circuit Judge Anderson, joined by Senior Circuit Judge Ebel (10^th Cir.) and District Judge Ungaro (SDFla).

 

Summary: The defendant Parton was charged with a violation of 18 U.S.C. § 2251(a), which criminalizes employing, using, inducing, or enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct if the visual depiction was produced or transmitted using materials that were transported in or affected interstate commerce. He moved to dismiss the indictment for an insufficient nexus to interstate commerce, asserting that the only such nexus asserted was that the electronic device he used to make the videos or photos traveled in interstate commerce.

 

This argument was previously rejected in United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), which held that Congress’s congressional authority permitted it to criminalize intrastate production of child pornography, because the cumulative effect of producing such pornography would substantially affect interstate commerce.  (This conclusion was buttressed by the Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005), and by United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006)).

 

The defendant suggested that the reasoning of these cases was effectively overruled by the Supreme Court’s “Obamacare” decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). The panel concluded that the previous Eleventh Circuit decisions remained good law, because Chief Justice Roberts’s opinion had no rationale to this case—here Congress did not criminalize inactivity, it criminalized the activity of making child pornography.  Thus, Sebelius did not abrogate Raich’s holding that Congress has the power as part of a comprehensive regulation of economic activity to regulate purely local activities that are part of a class of activities that have a substantial effect on interstate commerce.

 

The district court’s judgment denying the defendant’s challenge to his indictment was thus affirmed.

 

Note: The panel did not address the trickier question of whether Chief Justice Robert’s lead opinion about the Commerce Clause was dicta (technically, when counted with the four dissenters, there were five votes finding a violation of the Commerce Clause). The panel simply assumed that Chief Justice Robert’s opinion constituted a holding.

 

Note: This is another published opinion decided by a three-judge panel that contained only one Eleventh Circuit judge. (Chief Judge Carnes passed an emergency measure allowing panels to consist of only one Eleventh Circuit judge due to the continuing vacancies on the circuit).  This is the first published opinion by such a panel, however, where the only Eleventh Circuit judge was a senior judge! This means that a panel with no active Eleventh Circuit judges decided this appeal. That’s pretty rare, especially for a published, precedential opinion.