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United States v. Humphrey

United States Court of Appeals, Tenth Circuit

January 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
REGINALD HUMPHREY, Defendant-Appellant.

         Appeal from the United States District Court for the District of Utah (D.C. No. 2:12-CR-00039-DB-1)

         Submitted on the briefs: [*]

          Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, District of Utah, Salt Lake City, Utah, for Defendant-Appellant.

          John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.

          Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.

          MORITZ, Circuit Judge.

         Reginald Humphrey appeals the denial of his motion to dismiss an indictment charging him with one count of producing child pornography in violation of 18 U.S.C. § 2251(a). Humphrey asserts the district court erred in rejecting his argument that applying § 2251(a) to the intrastate production of child pornography violates the Commerce Clause. Finding no basis to overturn our prior precedent rejecting this same argument, we affirm.

         Background

         In 2007, S.L. told police that Humphrey, her mother's live-in boyfriend, had been sexually abusing her for the past two years in their Utah home. While investigating these allegations, police found videos and still images on Humphrey's laptop computer and digital camera depicting the abuse. But they found no evidence that Humphrey transmitted the videos or images over the internet or otherwise shared them with anyone. Humphrey pled guilty in state court to one count of rape and one count of forcible sexual abuse, and the state court imposed a prison term of five years to life.

         A federal grand jury subsequently indicted Humphrey for, in relevant part, one count of producing child pornography, in violation of 18 U.S.C. § 2251(a). Humphrey moved to dismiss the indictment, arguing that applying § 2251(a) to his solely intrastate production of child pornography violates the Commerce Clause. Citing this court's precedent holding otherwise, the district court denied the motion. Humphrey then conditionally pled guilty, reserving his right to appeal the district court's ruling. See Fed. R. Crim. P. 11(a)(2). The district court imposed a 16-year prison sentence with a 4-year downward adjustment for time served on the undischarged state sentence. See U.S.S.G. § 5G1.3(b)(1). Humphrey appeals.

         Discussion

         In his plea, Humphrey admitted that he sexually assaulted S.L., produced a video of the assault using a digital camera that had traveled in interstate commerce, and transmitted the video to his laptop using an S.D. card that had also traveled in interstate commerce.

         There's no question that § 2251(a) prohibits Humphrey's conduct. See § 2251(a) (prohibiting using "any minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . . if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means"). Rather, the question is whether applying § 2251(a) to Humphrey's conduct-i.e., locally producing child pornography for personal consumption without placing the pornographic images into the stream of interstate commerce-violates the Commerce Clause. This is a question of law that we review de novo. United States v. White, 782 F.3d 1118, 1123 (10th Cir. 2015). But, as Humphrey acknowledges, this is a question we've already answered.

         In United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), we held that applying § 2251(a) to the purely intrastate production of child pornography doesn't violate the Commerce Clause. 425 F.3d at 1273. There, the defendant and two other men took photographs as they sexually assaulted a 13-year-old girl in Utah. Id. at 1268. Neither the victim nor the photographs ever crossed state lines. And there was no evidence that the defendant intended to transmit ...


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