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The 9th U.S. Circuit Court of Appeals struck down a federal child pornography law Thursday — at least for those who don’t intend to take the material across state lines. A divided panel overturned the conviction of a woman arrested after employees at a U.S. Navy photo-developing studio reported a single picture of Rhoda McCoy and her 10-year-old daughter with their genitals exposed. The court held that under the Supreme Court’s recent Commerce Clause decisions, the federal government cannot prosecute McCoy. “The question here is not whether McCoy’s conduct in possessing the picture of herself and her 10-year-old daughter may provide the basis for subjecting her to criminal punishment by the state in which the conduct occurred,” Judge Stephen Reinhardt wrote. “Rather, the only question before us is whether the federal government may punish McCoy for possessing the picture.” Reinhardt noted that the prosecution was premised on the fact that the camera and film had crossed state lines after their manufacture. He was joined by Judge A. Wallace Tashima. Judge Stephen Trott dissented, saying the court may not create “as applied” exceptions to federal statutes. “In my view, if the conduct under review falls within the plain language of the statute, precedent requires us to take the statute head on, not carve pieces out of it,” Trott wrote. Reinhardt’s decision is predicated on the twin Supreme Court cases of United States v. Lopez, 514 U.S. 549, and United States v. Morrison, 529 U.S. 598, which generally held that Congress may not enact laws under the Commerce Clause that have an attenuated connection to commerce. Those decisions are hallmarks of Chief Justice William Rehnquist’s conservative jurisprudence, since they scale back Congress’ power. Legal scholars have speculated about their effects on criminal cases that are common in federal courts. “I think it’s quite likely, if it’s not reversed by the court en banc — and I have no reason to think that it will be — that it will be taken up by the U.S. Supreme Court,” said Eugene Volokh, a constitutional law professor at UCLA. The Northern District of California federal public defender’s office has used the rulings to bring numerous challenges on behalf of felons with handguns and others. Just recently, the office tried, unsuccessfully, to challenge a child pornography charge much like the one in Thursday’s United States v. McCoy, 03 C.D.O.S. 2483. Reinhardt’s decision contradicts the 3rd U.S. Circuit Court of Appeals, which held that those who possess child pornography are likely, at some point, to engage in the interstate commerce of such material. Reinhardt dismissed the “addict” argument. “We see no more justification for assuming that a possessor of a ‘home-grown’ photograph of one’s own child will ultimately enter the interstate pornography market as an addict than there is to assume that the possessor of a single marijuana cigarette will inevitably turn into a full-time heroin junkie,” Reinhardt wrote. One important aspect of Reinhardt’s ruling is his rejection of the child pornography statute’s “express jurisdiction.” Neither of the laws overturned in Lopez and Morrison laid out the argument for federal jurisdiction, and courts have generally upheld those statutes that do. But Reinhardt said the point of express jurisdiction is to limit the law’s reach to specific cases, something he argued the jurisdictional element of the child pornography statute does not do. “It not only fails to limit the reach of the statute to any category or categories of cases that have a particular effect on interstate commerce, but, to the contrary, it encompasses virtually every case imaginable, so long as any modern-day photographic equipment or material has been used,” he wrote.

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