In U.S. v. Smith, No. 03-13639 (March 18, 2005), the Court (Tjoflat, Roney, Hill) reversed the conviction of a defendant convicted of producing child pornography, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) & 2252A(a)(5)(B) on the ground that, as applied, the statutes exceeded Congress’ Commerce Clause power.
The Court noted that the only connection to interstate commerce was the fact that the paper on which the photos were printed was received from out of state. Citing U.S. v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (vacating child pornography conviction where the only interstate commerce nexus was the fact that the disks on which the images were stored had traveled, when blank, in interstate commerce), the Court held that the defendant’s conviction was "plain error."
The Court recognized that, notwithstanding Maxwell, the defendant would have waived the Commerce Clause issue if he had failed to raise it in his initial brief, under U.S. v. Levy, but, liberally construing an initial brief which never mentioned Commerce Clause caselaw but made a Commerce Clause argument, the Court held that the issue was not waived. Plain error applied because the issue was waived in the district court, because trial counsel merely argued that the statute should not be interpreted to extend to Smith’s conduct, not that the statute was unconstitutional as applied to Smith’s conduct.
Applying the Maxwell Commerce Clause analysis, the Court found that there was nothing "commercial or economic" about Smith’s conduct of taking pornographic photos of minors, an activity the Court found distinct from the wheat production at issue in Wiockard v. Filburn, 317 U.S. 111 (1942). The Court rejected the argument that the statute’s "jurisdictional hook" sufficed to satisfy the Commerce Clause, noting that the hook, which required a showing that materials had been shipped in interstate commerce, encompassed every case imaginable.
Applying "plain error" analysis, the Court found that the error in convicting Smith met all four of the "plain error" criteria, noting that it would harm the public reputation of the criminal justice system to brush aside the limits the Constitution places on the Federal Government.
