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June 17, 2004.

REID SELSETH, Defendant.

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


On April 7, 1999, a Grand Jury indicted Defendant Reid Selseth (hereinafter, "Selseth") on five counts of violations of the child pornography statutes 18 U.S.C. § 2251(a) (hereinafter, "§ 2251(a)") and 18 U.S.C. § 2251(d). Selseth moved to dismiss the indictment in its entirety, on the grounds that the conduct alleged did not violate § 2251(d), and that § 2251(a) stands unconstitutional as applied to him. In response to Selseth's motion, the government agreed to strike all references in the indictment to § 2251(d), but contended that under Seventh Circuit precedent, Selseth had no constitutional claim concerning § 2251(a). On March 19, 2004, the Court granted Selseth's motion to dismiss his indictment in its entirety. Shortly thereafter, the government moved for the Court to reconsider its ruling as to § 2251(a), and the Court agreed to receive full briefing on the government's motion.


  The Court compiled the following factual background from both the indictment and representations made to the Court by either Selseth or the government, which the other party either admits or fails to dispute.

  A. The Indictment

  The indictment at issue charges Selseth with five violations of § 2251(a). Under § 2251(a), a person faces criminal liability if he induces, coerces or entices a minor to engage in "any sexually explicit condition for the purpose of producing any visual depiction of such conduct," provided that:
. . . such 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.
  The present indictment alleges that Selseth participated in producing five ".jpg" documents (a file format used for storing graphical depictions), with each document containing a single image. The images were allegedly produced in the State of Illinois more than five years ago. Since that time, the images have never left the State of Illinois. The images each depict a single Illinois minor child exclusively. Therefore, with respect to the depictions themselves, the government acknowledges no hook to interstate commerce.

  Instead, the government seeks to prosecute Selseth based on the medium containing the five images. Specifically, the images 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 the computer disk arrived in Illinois, it was blank and perfectly legal to purchase and transport in interstate commerce. This disk constitutes the government's sole jurisdictional link to § 2251(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 acceded to Selseth's request to strike § 2251(d) from the indictment.

  B. The Government's Supplemental Evidence

  The government requests the opportunity to supplement the factual record by providing the Court with an in camera inspection of evidence retrieved from Selseth's home which did not form part of his indictment. The government contends that, although the indictment concerned just five pictures of a single minor child, Selseth actually possessed "thousands of images of child pornography . . . in various forms, including magazines, photographs, disks, and copies of downloaded images — many of which . . . traveled in interstate commerce." The government contends that it selected the at-issue images because it knew the identity of the child depicted in these images, and believed that this child "was psychologically capable of testifying in the grand jury." In so doing, the government felt that an indictment based on these images would provide it with the best shot of meeting its legal burden of proving that Selseth possessed pornographic images of a real minor, and not merely "virtual," computer-generated images of nonexistent people.


  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).


  The government first challenges this Court's ruling by arguing that, in adjudicating commerce clause issues, courts lack the power to declare statutes unconstitutional as applied to particular defendants. For support, the government cites Maryland v. Wirtz, 392 U.S. 183, 192-193 (1968) and United States v. Lopez, 514 U.S. 549, 558 (1995). In particular, the government notes that Lopez quoted Wirtz's Language that "the Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. Accordingly, the government contends that Wirtz and Lopez bars any individual defendant from claiming that a federal statute is unconstitutional as-applied to him due to the failure to link his conduct sufficiently to interstate commerce.

  The government's sweeping interpretation of Lopez finds no support in either Lopez or its progeny. The Court notes that the government cites Lopez out of context, and that the full citation stands inapposite to the government's position here. Specifically, Lopez actually referenced Wirtz to support its position that:
In response to the dissent's warnings that the Court was powerless to enforce the limitations on Congress' commerce powers because "all activities affecting commerce, even in the minutest degree, [Wickard], may be regulated and controlled by Congress," the Wirtz Court replied that the dissent had misread precedent as "neither here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities," Rather, "the Court has said only ...

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