The opinion of the court was delivered by: Amy J. St. Eve United States District Court Judge
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge
On July 19, 2005, a federal grand jury returned a three-count indictment charging Keith Pearson with manufacturing videos of children engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2251(a). Defendant has moved to dismiss the indictment as an unconstitutional application of Section 2251(a) to what he deems "purely intrastate conduct." For the reasons below, the Court denies Defendant's motion to dismiss.
In the course of conducting a search of Mr. Pearson's residence, police officers discovered VHS tapes containing images of children engaged in sexually explicit conduct. (R. 41-1 at 1.)*fn1 As a result of this discovery, a grand jury returned an indictment charging Pearson with three violations of Section 2251(a). (R. 35-1 at 1.) Specifically, the indictment alleges that Pearson employed, used, persuaded, induced and enticed a minor under the age of eighteen to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct. (Id. at 1-2.) The indictment does not allege that Pearson intended to introduce these particular tapes into the stream of intrastate or interstate commerce. (Id. at 2.)
Fed. R. Crim. P. 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). When considering a motion to dismiss under Rule 12(b)(2), a court assumes all facts in the indictment are true and must "view all facts in the light most favorable to the government." See United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999). When viewed in the light most favorable to the government, an indictment is sufficient if it satisfies three, constitutionally mandated, requirements. United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir. 2002). First, the indictment "must adequately state all of the elements of the crime charged; second, it must inform the defendant of the nature of the charges so that he may prepare a defense; and finally, the indictment must allow the defendant to plead the judgment as a bar to any future prosecution for the same offense." Id. (citing United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). In this regard, indictments "need not exhaustively recount the facts surrounding the crime's commission," United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997), rather "when determining the sufficiency of an indictment, [a court] look[s] at the contents of the subject indictment 'on a practical basis and in [its] entirety, rather than in a hypertechnical manner.'" United States v. McLeczynsky, 296 F.3d 634, 636 (7th Cir. 2002) (quoting Smith, 230 F.3d at 305). In addition, "[a]n indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Black, 469 F. Supp. 2d 513, 518 (N.D. Ill. 2006); United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003).
II. Defendant Pearson's Motion to Dismiss
Defendant has lodged an "as applied" challenge to the constitutionality of Section 2251(a). Pearson does not challenge Congress's power to criminalize the production of visual depictions of sexually explicit conduct involving minors if those visual depictions will be transported in interstate commerce or mailed. Rather, Pearson contends that the Court cannot constitutionally apply Section 2251(a) in this case because his conduct was "non-commercial, non-economic individual conduct that is purely intrastate in nature" and "there is no reasonable basis for concluding that the conduct had or was intended to have any significant interstate connection or any substantive effect on interstate commerce." (R. 35-1 at 2.)
A. Commerce Clause Framework
Congress may regulate three categories relating to commerce: (1) the channels of interstate commerce ("category one"); (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce ("category two"); and (3) activities that must be regulated to make a regulation of interstate commerce effective ("category three"). See, e.g., Raich v. Gonzalez, 125 S.Ct. 2216 (2005) (citing United States v. Morrison, 429 U.S. 598, 608-609 (2000); United States v. Lopez, 514 U.S. 549, 558-59 (1995); Hodel v. Virginia, 452 U.S. 264, 276-77 (1981); Perez v. United States, 402 U.S. 146 (1971)). The first two categories are permitted by the Commerce Clause itself (Art. I, § 8, cl.3), see Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824), while the third category is permitted by the Necessary and Proper clause (Art. I, § 8, cl. 18). See Raich, 125 S.Ct. at 2215-16 (Necessary and Proper Clause extends "Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce.").
In particular, the Necessary and Proper Clause extends Congressional authority into two areas beyond that specifically authorized by the Commerce Clause itself: (1) activity that must be regulated in order to ensure the effectiveness of a comprehensive scheme that regulates commercial activity, see Raich, 125 S.Ct. at 2206, and (2) commercial activity that, when aggregated, has a substantial effect on interstate commerce. See id. at ...