United States v. Charles O. Kallestad

236 F.3d 225, 2000 WL 1855084
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 19, 2000
Docket98-51089
StatusPublished
Cited by94 cases

This text of 236 F.3d 225 (United States v. Charles O. Kallestad) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles O. Kallestad, 236 F.3d 225, 2000 WL 1855084 (5th Cir. 2000).

Opinions

[226]*226PATRICK E. HIGGINBOTHAM,

Circuit Judge:

In this 28 U.S.C. § 2255 case we consider a challenge to the constitutionality of 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of sexually explicit depictions of minors if those depictions or the materials used to produce them were shipped in interstate commerce.1 We are persuaded that Congress could rationally conclude that to regulate a national market in child pornography it was necessary to regulate its local possession.

I

Government agents found a large number of nude photos and films of women, some of whom appeared to be minors, in Kallestad’s home. They also found notes he made regarding the women, including their names, addresses, and phone numbers. Agents used these notes to locate some of the women, and they discovered that several of them were minors at the time the photos and films were taken.

Kallestad had advertised in the Austin American Statesman newspaper for “slender female nude models.” Some of the advertisements stated that the age of the “models” was “unimportant.” Several of the girls who responded to the advertisement were 16 to 17 years old, and most of them told Kallestad their ages and that they were high school students. Kallestad took pictures and made films of the girls engaged in sexually explicit conduct and in some instances of them engaging in such conduct with him. The photos and films were made at Kallestad’s home in Austin, Texas. The film used to make the photos and films was manufactured outside of Texas.

Kallestad was convicted of numerous offenses including six counts charging violations of section 2252(a)(4)(B).2 On direct appeal, we vacated his sentence, finding an error in his sentence.

After Kallestad was resentenced, he moved for relief under 28 U.S.C. § 2255. He argues that his conviction for possession of material involving the sexual exploitation of minors should be vacated because the statute making that conduct an offense exceeds the authority of Congress under the Commerce Clause. Kallestad did not raise this issue on direct appeal.

The magistrate recommended denying relief, and the district court did so, also denying a certificate of appealability. We granted a certificate of appealability on the issue of the constitutionality of the statute prohibiting possession of materials involving the sexual exploitation of minors.

[227]*227II

The government argues that Kallestad’s challenge is barred because he did not raise the question on direct appeal. A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result.3 Kallestad argues that his counsel was ineffective for not raising the issue on direct appeal.

It is true that ineffective assistance of counsel can meet the cause and prejudice requirement for overcoming procedural default in a section 2255 motion.4 We do not consider the contention further because the government failed to preserve the issue. The government asserted the procedural bar before the magistrate, but filed no objection to the magistrate’s proposed findings and recommendations even though Kallestad filed objections and the district court conducted a de novo review of the case. The government must invoke the procedural bar in the district court to raise it here.5 A party who fails to file written objections to a magistrate judge’s proposed findings and recommendations waives the objection, and on appeal we will review the issue for plain error only.6 The district court did not err in reaching the merits of the constitutional challenge.

III

Kallestad argues that section 2252(a)(4)(B), which prohibits mere possession of child pornography, is beyond Congress’s power under the Commerce Clause. We review this constitutional challenge to a federal statute de novo.7

Similar arguments have been made in, and rejected by, other courts. The Third Circuit, in United States v. Rodia,8 rejected a similar challenge by a defendant convicted of possessing child pornography. The court noted that, in passing the 1978 Protection of Children Against Sexual Exploitation Act, Congress explicitly found that child pornography was a “multi-mil-lion dollar industry,” and the court concluded that there was a “substantial interstate market” in child pornography.9 The Rodia court then analogized to Wickard v. Filburn,10 and upheld the statute.11 Other courts have upheld section 2252(a)(4)(B) based on its jurisdictional hook, which requires that either the pornography itself, or the material used to manufacture it, has moved in interstate commerce.12

In United States v. Lopez,13 the Supreme Court defined three categories of activity Congress may regulate under the Commerce Clause: channels of interstate commerce, persons or things traveling in interstate commerce, and activities having a substantial effect on interstate commerce.14 In United States v. [228]*228Morrison,15 the Court clarified how the third category is to be analyzed. Courts are directed to inquire (1) whether the statute regulates “commerce,” or an activity that might be deemed an “economic activity,” broadly defined; (2) whether the statute has an “express jurisdictional element” that restricts its application to activities that have “an explicit connection with or effect on interstate commerce”; (3) whether congressional findings support the judgment that the activity in question has a substantial effect on interstate commerce; and (4) whether the act made an offense has an attenuated relationship to that substantial effect on interstate commerce.16

Kallestad argues that his offense falls within the third category, and like the crime of possessing a gun near a school zone, does not have a sufficiently substantial effect on interstate commerce to fall within Congress’s authority. He challenges section 2252(a)(4)(B) facially and as applied. We find his challenge unpersuasive.

A

Applying the first Morrison factor, the conduct being regulated here is commercial in character, defined broadly. As the 1986 Attorney General’s Commission on Pornography found, much of the interstate traffic in child pornography “involves photographs taken by child abusers themselves, and then either kept or informally distributed to other child abusers.”17 Such pornography is exchanged through the mails,18

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Cite This Page — Counsel Stack

Bluebook (online)
236 F.3d 225, 2000 WL 1855084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-o-kallestad-ca5-2000.