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The power of the federal government to regulate interstate commerce does not reach far enough to prosecute a Florida man for possessing child pornography on computer disks, a panel of the Atlanta-based 11th U.S. Circuit Court of Appeals has held. The defendant, James Maxwell, crossed state lines into Florida with the disks, but that was before they contained images of minor children engaging in sexual activities, Judge Gerald B. Tjoflat wrote for the panel. Since the government proved nothing more, Tjoflat continued, the panel concluded Maxwell’s conduct did not “substantially affect” interstate commerce enough for Congress to regulate it under the U.S. Constitution. Tjoflat ended the 60-page decision by noting that the concept of shared power between the states and the central government, or “federalism,” was crafted by the Framers “so that the people’s rights would be secured by the division of power.” “We decline today,” he added, “with no small regret about the outcome in this case, to ignore that design, even in favor of strengthening the hand of federal law enforcement in the salutary aim of eradicating child pornography.” Chief Judge J.L. Edmondson and Senior Judge Emmett Ripley Cox joined Tjoflat’s decision. U.S. v. Maxwell, No. 03-14326 (11th Cir. Oct. 1, 2004). The decision is the latest example of the tough time federal prosecutors are having as a result of landmark U.S. Supreme Court decisions that strictly limited Congress’ power under the Commerce Clause. The 11th Circuit in June heard arguments about whether an alleged murder-for-hire scheme was sufficiently related to interstate commerce for federal charges to be brought. The defendant allegedly arranged the murder via a cell phone call that took place between people in Georgia but was routed from towers in Georgia to Florida and back to Georgia. A decision in the case is pending. In another case, in 2002, an 11th Circuit panel tossed the federal arson convictions of a self-described Satan worshipper who set fire to five North Georgia churches. The judges ruled 2-1 that the crimes were not sufficiently related to interstate commerce, despite the churches’ purchase of prayer books from other states and the defendant’s use of interstate highways and an Indiana credit card to buy a gas can used in the arsons. The full 11th Circuit is scheduled to rehear the case on Oct. 26. EVIDENCE SUGGESTED GUILT In the Florida child pornography case, the panel’s opinion noted the existence of a great deal of evidence that suggests Maxwell’s guilt, even though the judges did not find enough of a connection to interstate commerce for the case to be prosecuted by the federal government. Maxwell had been living, platonically, with a woman named Alberta Wallace in her St. Petersburg, Fla., apartment. When he moved out to serve an unrelated prison sentence, Wallace discovered e-mail messages involving homosexuality and teenagers in Maxwell’s e-mail accounts on her computer. Wallace called the police and permitted the FBI to search Maxwell’s room, in which two disks with images of child pornography were found. Among a host of other evidence, the 11th Circuit noted that the government had introduced into evidence a taped phone call, from prison, between Maxwell and his pastor in which Maxwell asked the pastor to hide a box of floppy disks for him. After about two hours of deliberation, a jury found Maxwell guilty of two counts of possessing child pornography; he was sentenced to 66 months in prison. NO CONNECTION SHOWN But on appeal, the 11th Circuit said the government had failed to show a connection between interstate commerce and Maxwell’s actions. At issue was a 1995 U.S. Supreme Court decision, U.S. v. Lopez, 514 U.S. 549, which struck down a federal law prohibiting people from carrying guns near schools. By a 5-4 vote, the court declared that gun possession near schools did not affect interstate commerce enough to justify federal involvement. The Lopez decision has hindered other federal criminal prosecutions, including the North Georgia church arson case that the 11th Circuit will hear later this month. Curiously, the court suggested Maxwell had downloaded the pornographic images onto his disks from the Internet, but Tjoflat added that the government had not proved from where Maxwell accessed the images. Court decisions around the country have found that Internet communications can qualify as interstate commerce. PROSECUTORS PLANNING Steve Cole, a spokesman for the U.S. Attorney for the Middle District of Florida, declined to comment on the case except to say prosecutors were reviewing their options. Bernard J. McCabe Jr., the state prosecutor in Pinellas County, which includes St. Petersburg, was not available to discuss whether his office would bring state pornography charges against Maxwell. Dionja L. Dyer and Allison Guagliardo of the Federal Public Defender’s Office in Tampa, Fla., listed as Maxwell’s lawyers, did not return calls seeking comment. Kent Scheidegger, legal director of the Sacramento, Calif.-based Criminal Justice Legal Foundation, a national group that supports law enforcement, said he found the 11th Circuit opinion “unconvincing” and unlikely to withstand further scrutiny. “The child pornography market is pervasively interstate,” he said, unlike the isolated acts of gun trafficking near school zones cited in the Lopez case or the sexual assault in a 2000 case in which the Supreme Court struck down — on commerce clause grounds — a part of the federal Violence Against Women Act. U.S. v. Morrison, 529 U.S. 598. “Notwithstanding the Eleventh Circuit’s characterization of the activity as having a ‘noncommercial nature,’” Scheidegger said, “this stuff is sold, and criminalization of its possession reduces demand and hence traffic to a level lower than what would exist if it were legal.”

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