In U.S. v.Smith, No. 03-13639 (Aug. 11, 2006), the Court, on remand from the Supreme Court, affirmed the defendant’s convictions for producing and possessing child pornography.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.
