from the United States District Court for the District of
Utah (D.C. No. 2:12-CR-00039-DB-1)
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.
W. Huber, United States Attorney, and Ryan D. Tenney,
Assistant United States Attorney, District of Utah, Salt Lake
City, Utah, for Plaintiff-Appellee.
HARTZ, BACHARACH, and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
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.
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.
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
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.
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.
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 ...