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Eric Holston was given a 10-year federal sentence last year after admitting to making a sexually explicit videotape of two sisters, aged 10 and 14, who were downstairs neighbors in his Buffalo, N.Y., apartment building. His case raises a question that has frequently divided the federal courts in the recent past: How far can the federal government intrude, under cover of the commerce clause, into law enforcement functions traditionally left to the states? More particularly, does the commerce clause permit the federal government to prosecute those who produce or possess child pornography for their own gratification, with no commercial motive, and with no obvious connection to interstate commerce beyond the fact that their material, such as a camera or film or computer, were produced out of state? Holston entered his guilty plea subject to the condition that he could withdraw it if the 2d U.S. Circuit Court of Appeals ruled that federal prosecutors had no such authority. The court dashed his hopes on Sept. 4, in U.S. v. Holston, No. 02-1292, joining the 1st, 3d, 5th, 7th and 8th circuits in ruling that federal prosecution of “homegrown” child pornography is constitutionally permitted. Only two circuits-the 6th and the 9th-have ruled that prosecutions based on child pornography not intended for the stream of commerce may violate the Constitution in some instances. Jurisdictional hook Holston was prosecuted under 18 U.S.C. 2251(a), which subjects to criminal liability “[a]ny person who employs, uses, persuades, induces, entices or coerces any minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct,” provided one of three conditions having to do with interstate commerce is met. One such “jurisdictional hook,” as some courts call the conditions, is that the visual depiction actually traveled in interstate commerce. Holston’s video did not satisfy that condition, but prosecutors argued that it was “produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer,” as another of the jurisdictional hooks reads. The 2d Circuit stated, as have several of its sisters, that a congressional mantra that makes use of commerce clause phraseology may not be sufficient to provide a constitutional foundation for the exercise of federal power. In other words, though Congress may provide the hook, whether jurisdiction actually follows is still a question for the courts. The 2d Circuit ruled that the interstate material hook satisfied the commerce clause because the local production of child pornography, even when pursued for noncommercial reasons, helps create and sustain a national market through its cumulative impact. Having reached that general conclusion about “homegrown” pornography, the court held that under governing precedent Holston should be given no opportunity to prove that his actions were an exception. The 2d Circuit hints that the 6th and 9th circuits may have come to a contrary conclusion because they were confronted with exceptional facts. There may be some justice in that charge. In the 6th Circuit’s 2001 decision, U.S. v. Corp, 236 F.3d 325, the court made much of the fact that the victim in that case was just months shy of her 18th birthday and consented to appear in a “homegrown” porn video, but never explained how the interstate commerce nexus would be any stronger if she were younger or unwilling. In the 9th Circuit’s 2003 decision, U.S. v. McCoy, 323 F.3d 1114, the court dwelt on the relative innocence of a mother who took an explicit photograph of her daughter while drunk. However, whether swayed by unusual facts or not, both the 6th and 9th circuits clearly diverged from their sisters in legal terms, finding that the material hook did not support federal prosecution of McCoy or Corp. Young’s e-mail address is gyoungnlj.com.

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