## Facts

- Virgilio Jeronimo-Bautista and two other men, while with a thirteen-year-old girl, entered a vacant residence in Magna, Utah.
- The girl became unconscious, possibly after ingesting an intoxicating substance.
- While the girl was unconscious, the men removed her clothing, sexually assaulted her, and photographed the assault.
- The camera (and film) used to take the photographs was not manufactured in Utah.
- One participant later took the film to a photo lab; employees noticed images appearing to depict the sexual assault of a minor.
- A federal indictment charged, among other offenses, a violation of 18 U.S.C. § 2251(a) based on using a minor to engage in sexually explicit conduct for the purpose of producing visual depictions using materials transported in interstate or foreign commerce.

## Issues

1. Whether 18 U.S.C. § 2251(a) is a valid exercise of Congress’s Commerce Clause power as applied to intrastate production of child pornography when the asserted interstate nexus is only that materials used to produce the images previously moved in interstate or foreign commerce.
2. Whether the district court properly dismissed the § 2251(a) count under Fed. R. Crim. P. 12(b)(3)(B) for lack of federal authority over the charged conduct.

## Decision

- The Tenth Circuit reversed the district court’s order dismissing the § 2251(a) count and remanded for further proceedings.
- For purposes of reviewing the Rule 12(b)(3)(B) dismissal, the court accepted the indictment’s allegations as true and drew factual inferences in favor of the government.
- The court held § 2251(a) constitutional as applied because the statute includes an express jurisdictional element requiring that the depiction be produced (or transmitted) using materials that have been mailed, shipped, or transported in interstate or foreign commerce.
- The court concluded Congress could regulate intrastate production of child pornography as part of a broader class of activity that substantially affects the interstate market in child pornography.

## Legal Principles

- In evaluating a pretrial dismissal of an indictment count under Rule 12(b)(3)(B), appellate review accepts the indictment’s factual allegations as true and reviews legal conclusions de novo.
- Under the Commerce Clause, Congress may regulate activities that substantially affect interstate commerce; in assessing such regulation, courts consider whether a statute contains a case-specific jurisdictional element linking the prosecuted conduct to interstate commerce.
- A statute that criminalizes production of child pornography and requires proof that the visual depiction was produced or transmitted using materials that traveled in interstate or foreign commerce supplies a concrete interstate-commerce nexus for each prosecution.
- Congress may, based on legislative findings about a national commercial market, treat intrastate production of child pornography as part of a larger class of conduct that substantially affects interstate commerce, even when the images are not alleged to have crossed state lines.

## Conclusion

The Tenth Circuit held that § 2251(a) validly reaches intrastate production of child pornography when the government alleges and can prove the images were produced using materials that moved in interstate or foreign commerce, and it reinstated the dismissed count for further proceedings.


United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005)