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March 19, 2004.

United States of America
Reid Selseth

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge


Defendant Reid Selseth ("Selseth") was indicted on five counts of violations of 18 U.S.C. § 2252 (a) and 18 U.S.C. § 2252(d). Section 2252(a) prohibits production of child pornography when the defendant a) "knows or has reason to know" that the depiction will be transported in interstate commerce; b) the visual depiction has actually been transported in interstate commerce; or c) the visual depiction was produced using materials that were transported in interstate commerce. Section 2252(d) is more limited, prohibiting only the possession of visual depictions of child pornography that actually travel in interstate commerce or that the accused intended would travel in interstate commerce. Selseth now moves to dismiss the indictment in its entirely, on the grounds that the conduct alleged did not violate § 2252(d), and that § 2252(a) is unconstitutional as applied to him. The government, in response, Page 2 has agreed to strike all references in the indictment to § 2252(d), but contends that under Seventh Circuit precedent, Selseth has no constitutional claim concerning § 2252(a). For the reasons stated below, the Court GRANTS the effectively agreed motion to strike all references to § 2252(d) in the indictment. The Court also GRANTS Selseth's motion to strike the indictment in its entirety.


  On April 7, 1999, a Grand Jury indicted Selseth on five counts of violating 18 U.S.C. § 2252(a) and 18 U.S.C. § 2252(d). Each indictment concerned a single ". jpg" document (a file-format used for storing graphical depictions) containing a single image. Selseth contends, and the government does not deny, that these images were produced in the State of Illinois more than five years ago. Since that time, the images have never left the State of Illinois. The sole alleged minor depicted in the images lived in Illinois when the images were produced, and did not cross state lines at any time to facilitate production of the images. Furthermore, the government does not contend that Selseth ever sought to transport this disk out of the State of Illinois. Therefore, with respect to the depictions themselves, the government acknowledges no hook to interstate commerce.

  Instead, the government attempts to prosecute Selseth based on the medium containing the five images. Specifically, the images Page 3 were found on a single scan card or computer disk that at some time traveled to the United States following its manufacture in Japan. At the time it arrived in Illinois, the scan card/computer disk was blank and perfectly legal to purchase and transport in interstate commerce. Thus, this disk constitutes the government sole jurisdictional link to § 2252(a), as it was the only thing associated with the visual depictions that moved in interstate commerce (albeit at a time when the disk contained no information at all) . For this reason, the government conceded to Selseth's request to strike § 2252(d) from the indictment.


  A proper indictment serves three functions. It states all elements of the charged offense, informs defendants of the nature of the charge, and enables defendants to plead double jeopardy as a bar to repeated prosecution for the same offense. United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985). The indictment is not tested on the strengths or weaknesses of the government's case. It is examined solely for its sufficiency in charging the offense. United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988).


  In his reply brief, Selseth conceded that, under United States v. Angle, 234 F.3d 326 (7th Cir. 2000), § 2252(a) on its face does not constitute an unconstitutional exercise of Congress's Commerce Page 4 Power. Therefore, the only issue left for the Court to address is whether § 2252(a) is unconstitutional as applied to Selseth.

  To serve as a valid exercise of Congress's Commerce Power, a statute must engender to regulate: (1) the channels of interstate commerce; or (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; or (3) activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-559 (1995).

  The aforementioned Angle case serves as one-half of the Seventh Circuit's recent authority on § 2252(a)'s constitutionality. In Angle, the defendant was stopped by U.S. Customs at the United States-Mexico. border. During this stop, Customs found several videotapes containing child pornography that the defendant was carrying across the border from Mexico. A subsequent search of the defendant's home uncovered additional videotapes that had unquestionably traveled in interstate commerce.

  Despite the facts of Angle, which demonstrate violations of § 2252(a) on multiple grounds, the Seventh Circuit decided to uphold § 2252(a)'s constitutionality on very broad grounds. The Seventh Circuit characterized § 2252(a) as a valid "category three" regulation, the type defined by Lopez as regulating activities that substantially affect interstate commerce under a so-called "market theory." Specifically, the Seventh Circuit adopted the reasoning Page 5 of the Third Circuit in United States v. Rodia, 194 F.3d 465, 477 (3rd Cir. 1999), quoting with approval Rodia' s statement that:
Some pornographers manufacture, possess, and use child pornography exclusively within the boundaries of a state, and often only within the boundaries of their own property. It is unrealistic to think that those pornographers will be content with their own supply, hence they will likely wish to explore new or additional pornographic photographs of children. Many of those pornographers will look to the interstate market [**28] as a source of new material, whether through mail order catalogs or through the Internet. Therefore, the possession of "home grown" pornography may well stimulate a further interest in pornography that immediately or eventually animates demand for interstate pornography. It is also reasonable to believe the related proposition that discouraging the intrastate possession of pornography [*338] will cause some of these child pornographers to leave the realm of child pornography completely, which in turn will reduce the interstate demand for pornography.
United States v. Angle, 234 F.3d at 338.

  Using Rodia's reasoning, the Seventh Circuit held that "to effectively regulate child pornography, Congress could have legitimately found it necessary to have federal control over both the interstate and local versions of the activity." Id. at 338. Accordingly, the Seventh Circuit declared "because § 2252(a)(4)(B) prohibits intrastate activity that is substantially related to the closely regulated interstate market of child pornography, we conclude that the statute is a valid exercise of Congress's Page 6

 Commerce Clause power." In doing so, however, the Seventh Circuit upheld § 2252(a) only against a facial challenge. In speaking of the jurisdictional hook, the Seventh Circuit favorable referenced the First and Eight Circuits' notion of engaging in a "case by case inquiry" to see whether "the pornography in question affects interstate commerce." Id. at 336. As applied to the facts here then, it seems that the relevant Angle inquiry concerns whether the ...

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