United States v. Rhonda Anne McCoy

323 F.3d 1114 UNITED STATES of America, Plaintiff-Appellee, v. Rhonda Anne McCOY, Defendant-Appellant. No. 01-50495. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 6, 2002. Decided March 20, 2003. Angela M. Krueger, Federal Defenders of San Diego, Inc, San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Anne K. Perry, Assistant United States Attorney, Appellate Section, Criminal Division, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Lloyd D. George, District Judge, Presiding. D.C. No. CR-01-00101-LDG. Before REINHARDT, TROTT and TASHIMA, Circuit Judges. Opinion by Judge REINHARDT; Dissent by Judge TROTT. OPINION REINHARDT, Circuit Judge. 1 Appellant Rhonda McCoy entered a conditional plea of guilty to possession of child pornography after photo shop employees discovered a picture of her and her daughter with their genital areas exposed. Specifically, she reserved the right to appeal on constitutional grounds the denial of her motion to dismiss the…

Opinion by Judge REINHARDT; Dissent by Judge TROTT.

OPINION

Appellant Rhonda McCoy entered a conditional plea of guilty to possession of child pornography after photo shop employees discovered a picture of her and her daughter with their genital areas exposed. Specifically, she reserved the right to appeal on constitutional grounds the denial of her motion to dismiss the charges against her. In her appeal, McCoy challenges the section of the federal statute that prohibits the possession of child pornography made with materials that have traveled in interstate commerce, 18 U.S.C. § 2252 (a)(4)(B), asserting that the provision constitutes an unconstitutional exercise of Congress’s power under the Commerce Clause.

We hold that 18 U.S.C. § 2252 (a)(4)(B) is unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

I. BACKGROUND

The facts underlying the charge to which McCoy pleaded guilty arise from a single…

dissenting.

My colleagues have finessed an unavoidable issue in this case: whether 18 U.S.C. § 2252 (a)(4)(B) is unconstitutional on its face. They have attempted to restrict their holding to McCoy and to others “similarly situated,” but it is not clear to me that the law permits such a limitation. I so conclude because McCoy’s conduct clearly falls within the language of the statute, and because the Supreme Court appears under such circumstances to have ruled out “as applied” challenges in Commerce Clause cases. In my view, if the conduct under review falls within the plain language of the statute, precedent requires us to take the statute head on, not carve pieces out of it. Because I disagree with my colleagues’ approach to the issues as well as to their holding, I respectfully dissent.

I

Among the first principles one learns when studying the Constitution in law school is that our federal government is one of “enumerated powers.” McCulloch v. Maryland, 4 Wheat. 316 , 17 U.S. 316, 405 , 4 L.Ed. 579 (1819). As the Supreme Court has explained, “Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with…