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Recent U.S. Supreme Court decisions on limits to congressional authority under the Commerce Clause do not undermine a federal anti-child pornography statute, the 2nd U.S. Circuit Court of Appeals has ruled. The ruling in United States v. Holston, 02-1292, concerned the Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. � 2251(a), which was amended in 1998 to include a new basis for federal prosecution of child pornographers who use “materials that have been mailed, shipped, or transported in interstate or foreign commerce.” Eric Holston had pleaded guilty under the statute in the Western District of New York, admitting before Chief Judge Richard Arcara that he produced visual depictions of sexually explicit conduct by minors. The children were the daughters of a single mother who lived in the apartment above his in Buffalo. With no allegation that Holston trafficked in child pornography across state lines, the jurisdictional basis for the federal prosecution was the use of videocassette recorders and other equipment manufactured outside New York. Arcara imposed a 10-year sentence, and Holston then challenged the statute both facially and as applied at the 2nd Circuit. He argued that the standards for jurisdiction under the Commerce Clause of the U.S. Constitution had been changed by the U.S. Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). The Lopez court found the Gun-Free School Zones Act of 1990 unconstitutional because the criminal statute, “by its terms had nothing to do with commerce.” The Court said the statute lacked a jurisdictional element that would ensure a case-by-case inquiry into whether commerce was affected, and that there were no congressional findings that would help courts analyze the impact on commerce. The Morrison court followed Lopez by striking down the civil remedy provisions of the Violence Against Women Act of 1994. The Court added another factor to consider in determining whether a particular activity has a “substantial effect” on commerce: whether the link between the prohibited conduct and a substantial effect on interstate commerce is attenuated. Holston claimed the “materials-in-commerce” basis for federal jurisdiction under �2251(a) should be struck down because there was a weak link between the prohibited conduct and interstate commerce on the face of the statute, and on the facts of his own case. Writing for the court, Judge Barrington D. Parker Jr. said the 2nd Circuit had yet to address the constitutionality of the “materials-in-commerce” prong. Of the seven circuits to have considered the issue, he said, five have upheld the use of the “materials-in-commerce” prong. And the two circuits that have vacated convictions under a related section of the statute did so only as applied, and on what Parker called “somewhat unique facts.” He said the 2nd Circuit accepted Congress’ “conclusions both that there is an extensive commercial market in child pornography and that much of the material that feeds this market is ‘homegrown,’ that is, produced by amateur photographers.” The second factor under Morrison, “whether the statute contains a jurisdictional element that might limit its application,” he said, “is at least superficially met here.” The third factor was also met in that Congress made detailed findings on the child pornography market’s “reliance on the instrumentalities of interstate commerce,” the judge said. LINK NOT ATTENUATED Finally, Parker said, the link between the prohibited conduct in the statute and commerce was not attenuated. “Because much of the child pornography that concerned Congress is homegrown, untraceable, and enters the national market surreptitiously, we conclude that Congress, in an attempt to halt interstate trafficking, can prohibit local production that feeds the national market and stimulates demand, as this production substantially affects interstate commerce,” he said. “Accordingly, we conclude that insofar as Sec. 2251(a) prohibits the production of child pornography using materials that have moved in interstate commerce, it is a permissible exercise of Congress’ authority under the Commerce Clause.” Judges James L. Oakes and Amalya Kearse joined in the opinion. James P. Harrington of Harrington & Mahoney in Buffalo represented Holston. Assistant U.S. Attorney Paul J. Campana represented the government.

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