In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2944

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRY E. SCHAFFNER,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 CR 6--Barbara B. Crabb, Chief Judge.

ARGUED APRIL 5, 2001--DECIDED July 24, 2001


  Before BAUER, RIPPLE and EVANS, Circuit
Judges.

  RIPPLE, Circuit Judge. Terry E.
Schaffner appeals the district court’s
denial of his motion to dismiss the
indictment charging him with the sexual
exploitation of a child in violation of
18 U.S.C. sec. 2251(a). Mr. Schaffner
pleaded guilty, but his plea agreement
allowed him to seek review of the
district court’s denial of his motion to
dismiss. Mr. Schaffner argues that
applying sec. 2251(a) to his conduct
exceeds the authority of the federal
government under the Commerce Clause of
the Constitution of the United States.
For the reasons set forth in this
opinion, we affirm the district court’s
denial of his motion to dismiss the
indictment.

I

BACKGROUND

A.   Facts

  In April 1997, a 15-year-old girl ran
away from her Wisconsin foster home and
went to Mr. Schaffner’s residence. Mr.
Schaffner was 34 years old at the time.
While at his home, Mr. Schaffner and the
girl used methamphetamine, at times
through injections administered by Mr.
Schaffner. After injecting the girl with
drugs, Mr. Schaffner and Calvin
Flodquist, a 19-year-old friend of Mr.
Schaffner, drove her across state lines
to Minnesota. The three then stayed
several days at different hotels in the
Minneapolis-St. Paul area. During their
stay, Mr. Schaffner again injected the
girl with methamphetamine. At one point,
she became frightened when her nose and
toes began to turn pink. Mr. Schaffner
advised the girl to take a shower to make
her feel better. After she emerged from
the shower, Mr. Schaffner told her to sit
on a table in the bathroom; he then took
a nude photograph of her with her legs
spread apart. During their stay in
Minnesota, Mr. Schaffner showed the
photograph to a drug dealer.

  Mr. Schaffner eventually drove the girl
back to Wisconsin and dropped her off at
a friend’s house. A day and a half later,
Mr. Schaffner picked the girl up and took
her back to his residence. On April 21,
1997, sheriff’s deputies from Dunn
County, Wisconsin, discovered the girl at
Mr. Schaffner’s home and returned her to
the foster home. One month later, an aunt
of Mr. Schaffner’s children discovered
the nude photograph inside a heating vent
in Mr. Schaffner’s bathroom. The woman
gave the photograph to her sister, the
children’s mother, who turned the
photograph in to the police. Dunn County
investigators later learned that Mr.
Schaffner had shown the photograph to two
acquaintances.

B.   Proceedings Before the District Court

  On January 12, 2000, a federal grand
jury returned a one-count indictment
charging Mr. Schaffner with knowingly
using and inducing a minor to engage in
sexually explicit conduct--specifically,
the lascivious exhibition of the minor’s
genitals and pubic area--for the purpose
of visually depicting such conduct in
violation of 18 U.S.C. sec. 2251(a). The
indictment further charged that the
visual depiction was transported in
interstate commerce. Section 2251(a) is
captioned "Sexual Exploitation of
Children" and provides in relevant part
that

[a]ny person who employs, uses,
persuades, induces, entices, or coerces
any minor to engage in . . . any sexually
explicit conduct for the purpose of
producing any visual depiction of such
conduct, shall be punished as provided in
subsection (d) . . . if such visual
depiction has actually been transported
in interstate or foreign commerce or
mailed.

18 U.S.C. sec. 2251(a).

  Mr. Schaffner moved to dismiss the
indictment. He argued that the
application of sec. 2251(a) to his
conduct exceeded the constitutional
authority of the federal government under
the Commerce Clause. Relying upon United
States v. Lopez, 514 U.S. 549 (1995),/1
Mr. Schaffner maintained that his conduct
had no substantial relation to interstate
commerce and that, therefore, the federal
government lacked the authority to
sanction him for that conduct. Mr.
Schaffner acknowledged that, unlike the
statute at issue in Lopez, sec. 2251(a)
contained a jurisdictional hook because
the statute requires that the visual
depiction has actually been transported
in interstate or foreign commerce. Mr.
Schaffner nevertheless submitted that the
mere existence of this jurisdictional
hook was not enough to ensure that his
conduct affected interstate commerce. Mr.
Schaffner further argued that his conduct
lacked a sufficient nexus to interstate
commerce.

  On May 5, 2000, the magistrate judge
recommended that the district court deny
Mr. Schaffner’s motion. The magistrate
judge relied in part on our decision in
United States v. Bell, 70 F.3d 495, 497-
98 (7th Cir. 1995), in which we rejected
a Commerce Clause challenge to 18 U.S.C.
sec. 922(g)(1), which prohibits
possession of a firearm by a felon. In
Bell, we noted that, unlike the
schoolyard gun act in Lopez, sec.
922(g)(1) explicitly requires that a
nexus to interstate commerce be
established. See Bell, 70 F.3d at 498. In
Bell, we reasoned that the "mere movement
of a weapon, at some time, across state
lines satisfied the commerce element of
sec. 922(g)(1)." Id. We further pointed
out that the absence of even such a
minimal nexus to interstate commerce is
what doomed the statute in Lopez. See id.
The magistrate judge further noted that,
in United States v. Sirois, 87 F.3d 34,
40 (2d Cir. 1996), the Court of Appeals
for the Second Circuit had declined to
engraft a "commercial purpose"
requirement on sec. 2251(a). Rather, held
the Second Circuit, the interstate
commerce nexus requirement was satisfied
by Congress’ decision to punish the
production of sexually explicit visual
depictions of minors only when
transportation in interstate commerce
occurred or was intended. See id. at 39.
The magistrate judge concluded that,
because sec. 2251(a), like sec.
922(g)(1), requires the movement of an
item across state lines, the statute
constitutionally could proscribe the
conduct charged in the indictment.

  The district court adopted the
magistrate judge’s findings of fact and
conclusions of law and determined that
Mr. Schaffner’s conduct became subject to
Congress’ authority under sec. 2251(a)
once the photograph crossed state lines.
On May 15, 2000, Mr. Schaffner pleaded
guilty pursuant to a written plea
agreement that allowed him to appeal the
district court’s denial of his motion to
dismiss the indictment. The district
court sentenced Mr. Schaffner to 140
months’ incarceration and 36 months’
supervised release.

II

DISCUSSION

A.  Standard of Review
  Mr. Schaffner submits that his conduct
did not affect commerce among states and
is thus outside the scope of Congress’
Commerce Clause powers. We review rulings
regarding the constitutionality of a
federal statute de novo. See United
States v. Wilson, 159 F.3d 280, 285 (7th
Cir. 1998). However, in determining
whether Congress, in exercising its power
under the Commerce Clause, has acted
within the bounds of its constitutional
authority, we must keep in mind that
congressional power under the Commerce
Clause "is complete in itself, may be
exercised to its utmost extent, and
acknowledges no limitations, other than
are prescribed in the constitution."
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
196 (1824). In determining whether
Congress has stayed within the limits of
that power, therefore, judicial review of
congressional determinations is "limited
and deferential." United States v. Black,
125 F.3d 454, 459 (7th Cir. 1997). We
need ask only whether sec. 2251(a) is a
rational exercise of Congress’ Commerce
Clause power and whether the regulatory
means chosen reasonably were adapted to
the end permitted by the Constitution.
See id. Nevertheless, this approach is
not a toothless one. A court will not
"inevitably rubber stamp all
congressional statutes. It is still the
province of the courts to determine
whether Congress has exceeded its
enumerated powers." Id. As Lopez makes
clear, there are judicially enforceable
outer limits on Congress’ power. See
Lopez, 514 U.S. at 566.

B. Lopez and the Three Approaches to
Commerce Clause Analysis

  The Commerce Clause gives Congress power
"[t]o regulate Commerce with foreign
Nations, and among the several States,
and with the Indian Tribes." U.S. Const.
art. I, sec. 8, cl. 3. In Lopez, the
Supreme Court noted that the Commerce
Clause permits Congress to regulate and
protect (1) the use of the channels of
interstate commerce ("category one"); (2)
the instrumentalities of interstate
commerce, or persons or things in
interstate commerce even though the
threat may come only from intrastate
activities ("category two"); and (3)
those activities having a substantial
relation to interstate commerce
("category three"). See Lopez, 514 U.S.
at 558-59. In United States v. Petersen,
236 F.3d 848, 856 (7th Cir. 2001), we
pointed out that these three categories
are not "methods of proof"; rather, they
signal areas within Congress’ power to
regulate. Therefore, they ought not be
considered hermetically sealed constructs
designed solely for rigid application. As
the Supreme Court itself has
acknowledged, and our colleagues in the
District of Columbia Circuit have noted,
many congressional exercises of authority
are justifiable under more than one of
the Lopez categories./2 Indeed, in
Navegar, Inc. v. United States, 192 F.3d
1050, 1055 n.2 (D.C. Cir. 1999), cert.
denied, 121 S. Ct. 53 (2000), the
District of Columbia Circuit pointed out
that, although "the categories are useful
as a synopsis of the Supreme Court’s
Commerce Clause jurisprudence, the
attempt to fit a regulation squarely
within one category can prove elusive,
even fruitless." See also Black, 125 F.3d
at 461 (stating that the Child Support
Recovery Act "couldconceivably fall under
all three categories enumerated in
Lopez").

  Given the overlapping nature of the
Lopez categories, we believe that we
shall reach a more comprehensive
appreciation of the congressional
determination embodied in sec. 2251(a) if
we assess the statute and the acts before
us from each of the perspectives set
forth in Lopez and permit those different
vantage points to cast illuminating
"cross-lights on one another." Niemotko
v. Maryland, 340 U.S. 268, 274 (1951)
(Frankfurter, J., concurring).


  1. Category One: Channels of Interstate
Commerce

  As we noted in United States v. Kenney,
91 F.3d 884, 888 (7th Cir. 1996),
Congress has, under the Commerce Power,
the right to regulate the use or misuse
of the channels of commerce. Congress may
protect the channels of interstate
commerce from immoral or injurious uses,
see Lopez, 514 U.S. at 558 (citing Heart
of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 256 (1964)), and may forbid
or punish the use of the channels to
promote dishonesty or the spread of any
evil or harm across state lines, see
Brooks v. United States, 267 U.S. 432,
436 (1925). This category has been used
to prevent illicit goods from traveling
through the channels of commerce. See
United States v. Robinson, 119 F.3d 1205,
1210 (7th Cir. 1996) (citing Heart of
Atlanta, 379 U.S. at 256). Examples of
activity falling within category one
include the shipment of stolen goods,
kidnapped persons, prostitutes and guns.
See United States v. Wilson, 73 F.3d 675,
680 n.5 (7th Cir. 1996).

  In Kenney, we explicitly considered the
scope of Congress’ authority to regulate
the channels of interstate commerce and
concluded that 18 U.S.C. sec. 922(o),
which outlaws the transfer or possession
of machine guns, did not fit comfortably
within this analytical framework. See
Kenney, 91 F.3d at 889. Significantly, we
noted that, unlike sec. 922(o), all of
the category one examples cited in Lopez
contain a jurisdictional nexus element.
See id. (citing 18 U.S.C. sec.sec. 2312-
2315 (interstate shipment of stolen
goods); 18 U.S.C. sec. 1201 (interstate
transport of kidnapping victims); United
States v. Darby, 312 U.S. 100 (1941)
(regulation of working conditions in the
production of goods for interstate
commerce)).

  Notably, the application of sec.
2251(a), at issue in this case, differs
from sec. 922(o) in precisely the way
that we found so significant in Kenney.
Unlike sec. 922(o), the activity here is
tied specifically to interstate activity.
The jurisdictional nexus must be
established; the picture must have been
transported in interstate commerce, a
movement that Congress may prohibit in
order to prevent the spread of injurious
or immoral uses. See Lopez, 514 U.S. at
558. Through sec. 2251(a), Congress has
set out to prohibit the interstate
movement of a commodity through the
channels of interstate commerce, see
Lopez, 514 U.S. at 559, and also to
protect those channels from the immoral
impact of child pornography. The
application of sec. 2251(a) to Mr.
Schaffner’s conduct achieves that
permissible congressional purpose.


  2. Category Two: "Things" in Interstate
Commerce

   The plain language of sec. 2251(a)
regulates the movement of visual
depictions of child pornography in
interstate commerce. The Supreme Court’s
formulation of its three analytical
categories in Lopez explicitly included
within the second category the
"regulation" of "things in interstate
commerce," 514 U.S. at 558./3 Although
some recent decisions have articulated a
reluctance to include within this
category the power to regulate, as
opposed to protect, things in interstate
commerce,/4 in Black, 125 F.3d at 460,
we nevertheless held that the Child
Support Recovery Act, 18 U.S.C. sec. 228,
is permissible under category two because
it regulates the nonpayment of interstate
child support obligations, thus
regulating a "thing" in interstate
commerce./5

  Our court has upheld, as consistent with
Lopez, the prohibition of the possession
of a firearm that has traveled in
interstate commerce, 18 U.S.C. sec.
922(g)(1), see Bell, 70 F.3d at 497-
98,/6 and the federal carjacking
statute, 18 U.S.C. sec. 2119, see United
States v. Taylor, 226 F.3d 593, 600 (7th
Cir. 2000). Although Bell, stressing the
statute’s explicit jurisdictional
element, did not peg its analysis to one
of the Lopez constructs, and Taylor,
relying on category three, saw no
necessity to discuss category two, see
Taylor, 226 F.3d at 599, we later
acknowledged in Petersen that both of
these statutes are properly characterized
as permissible exercises of Congress’
Commerce Clause power under category two.
See Petersen, 236 F.3d at 856. Notably,
our colleagues in the Tenth Circuit also
have determined that category two
encompasses congressional regulation of
things in interstate commerce. See United
States v. Dorris, 236 F.3d 582, 586 (10th
Cir. 2000), cert. denied, 121 S. Ct. 1635
(2001) (holding that sec. 922(g) is
viewed best under categories one and two
because it orders that the channels of
interstate commerce be kept clear of
firearms (category one) and addresses
items sent in interstate commerce
(category two)).

  We believe that the symbiotic
relationship of categories one and two,
which the Tenth Circuit aptly perceived
in its analysis of the firearms
provision, also is present with respect
to the provision before us today
prohibiting the transportation of child
pornography. Through the invocation of an
explicit jurisdictional nexus, Congress
has limited the scope of its regulation
to the transportation of the item in
interstate commerce. Thus, it has sought
to prevent the spread of pornographic
material depicting children by forbidding
its presence in interstate commerce.


  3. Category Three: Substantial Effect on
Interstate Commerce

  In United States v. Robertson, 514 U.S.
669, 671 (1995) (per curiam), the Supreme
Court made clear that the "’affecting
commerce’ test was developed in our
jurisprudence to define the extent of
Congress’ power over purely intrastate
commercial activities that nonetheless
have substantial interstate effects." The
criminal activity at issue in this case
necessarily involves the interstate
movement of the pornographic material.
Therefore, this category of Lopez is not
directly applicable. Nevertheless, an
analysis of Lopez and its progeny is
useful to a clear understanding of the
congressional decision to regulate the
activity at issue in this case.

  In Lopez, the criminal activity did not
involve any direct interstate movement.
The mere possession of a firearm in a
school zone comprised the completed
criminal offense. Therefore, the Supreme
Court dismissed the applicability of the
first two analytical categories to 18
U.S.C. sec. 922(q), the statute
proscribing the possession of a firearm
in a school zone:

The first two categories of authority may
be quickly disposed of: sec. 922(q) is
not a regulation of the use of the
channels of interstate commerce, nor is
it an attempt to prohibit the interstate
transportation of a commodity through the
channels of commerce; nor can sec. 922(q)
be justified as a regulation by which
Congress has sought to protect an
instrumentality of interstate commerce or
a thing in interstate commerce.

Lopez, 514 U.S. at 559. Nor, the Court
continued, did sec. 922(q) fit within the
third category of allowable congressional
regulation of commerce because: (1) the
Act was a criminal statute that had
nothing to do with interstate commerce or
any kind of economic enterprise; (2) it
contained no jurisdictional element which
would ensure, through case-by-case
inquiry, that the firearm possession in
question affected interstate commerce;
and (3) Congress had offered no
legislative findings establishing a nexus
between interstate commerce and the
possession of a gun in a school zone. See
id. at 559-62.

  Since Lopez, the Supreme Court has
employed category three to strike down
one other law and limit the application
of a second. See United States v.
Morrison, 529 U.S. 598 (2000); Jones v.
United States, 529 U.S. 848 (2000). In
Morrison, the Court struck down the civil
remedy provision of the Violence Against
Women Act, 42 U.S.C. sec. 13981(b)
("VAWA"), on the ground that it exceeded
congressional authority to regulate
interstate commerce. See Morrison, 529
U.S. at 617-18. The VAWA created civil
liability for gender-based violent crime.
Like the schoolyard gun act in Lopez, the
VAWA did not contain a jurisdictional
element tying the criminalized activity
to Congress’ power to regulate interstate
commerce. See 42 U.S.C. sec. 13981(c);
see also Morrison, 529 U.S. at 612;
United States v. Taylor, 226 F.3d 593,
598 (7th Cir. 2000). In both Lopez and
Morrison, the Court explained that "the
noneconomic, criminal nature of the
conduct at issue was central to our
decision." Morrison, 529 U.S. at 610
(citing Lopez). The Court also pointed
out that neither statute contained an
express jurisdictional element that might
limit its reach to activity that has an
explicit connection with or effect on
interstate commerce. See id. Both
statutes criminalized activity that was
not commercial in nature without
including a jurisdictional element that
linked the criminalized activity to
interstate commerce. See Taylor, 226 F.3d
at 598. The Court then provided further
guidance regarding category three
analysis under Lopez, posing four
possible questions to help determine
whether a law regulates an activity that
has a substantial effect on interstate
commerce: (1) whether the prohibited
activity is commercial or economic in
nature; (2) whether there is an express
jurisdictional element involving
interstate activity that might limit the
statute’s reach; (3) whether Congress has
made findings about the effects of the
prohibited conduct on interstate
commerce; and (4) whether the link
between the prohibited activity and the
effect on interstate commerce is
attenuated. See Morrison, 529 U.S. at
611-12.

  The Court also used the third Lopez
category to circumscribe the federal
arson law, 18 U.S.C. sec. 844(i). In
Jones, the Court held that 18 U.S.C. sec.
844(i), which makes it a federal crime to
destroy a building used in interstate
commerce or in an activity affecting
interstate commerce, may not reach an
owner-occupied residence not used for any
commercial purpose. See Jones, 529 U.S.
at 858-59. Such buildings, the Court
concluded, need a more substantial
connection to interstate commerce than
merely using goods moved in interstate
commerce or obtaining financing from an
out-of-state company to come within the
statute. See id.

  The photograph at issue in this case
actually traveled across state lines. As
in Bell, where the movement of a weapon
across state lines satisfied the commerce
element of the statute, the interstate
movement of the photograph provides a
sufficient nexus to interstate commerce.
Here, as applied to Mr. Schaffner, the
jurisdictional element makes federal
criminal responsibility turn on the
actual movement of the pornographic item
in interstate commerce. In short, this
case does not involve local activity that
impacts interstate commerce only
obliquely or not at all. Rather, the
local activity comes within the ambit of
the prohibition because interstate
movement actually takes place. The
criminal activity is inducing a minor to
participate in the taking of a photograph
and the photograph’s movement in
interstate commerce. The actual movement
of the photograph across state lines
directly implicates interstate commerce
and the legitimate congressional concern
that this evil not be spread or
encouraged through the use of the
channels of interstate commerce. It would
have been entirely rational for Congress
to have determined that material such as
this does not stay in one place.
Furthermore, Congress could have
determined that the most effective way of
curbing its spread was to sanction the
producer whenever his product crossed a
state line and had the opportunity to
fuel the demand for such material in
another locale. Because there is a
rational basis for this congressional
decision, we must let it stand.

Conclusion

  It is undisputed that the photograph in
question crossed state lines. Thus,
prosecution under sec. 2251(a) in this
case is a permissible exercise of
Congress’ authority under the Commerce
Clause. Accordingly, the district court’s
denial of Mr. Schaffner’s motion to
dismiss the indictment is affirmed.

AFFIRMED

FOOTNOTES
/1 In United States v. Lopez, 514 U.S. 549 (1995),
the Supreme Court struck down the Gun-Free School
Zones Act, 18 U.S.C. sec. 922(q), which crim-
inalized knowingly possessing a firearm in a
school zone, because regulating such activity
exceeded Congress’ authority under the Commerce
Clause.

/2 In Navegar, Inc. v. United States, 192 F.3d 1050,
1055 n.2 (D.C. Cir. 1999), cert. denied, 121 S.
Ct. 53 (2000), the Court of Appeals for the
District of Columbia Circuit noted that Lopez had
cited United States v. Darby, 312 U.S. 100, 114
(1941), as a category one case, while citing
Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968),
as a category three case. Wirtz involved a chal-
lenge to a 1961 amendment to the Fair Labor
Standards Act that had been challenged originally
in Darby.

/3 We note that the Court, at a later point in its
Lopez opinion, omits the term "regulate" from its
description of the second category. Lopez, 514
U.S. at 559.

/4 See United States v. Angle, 234 F.3d 326, 337
n.12. (7th Cir. 2000), cert. denied, No. 00-8951,
2001 WL 267820 (U.S. June 25, 2001); United
States v. Wilson, 73 F.3d 675, 688 (7th Cir.
1996).

/5 Other circuits have agreed with United States v.
Black, 125 F.3d 454 (7th Cir. 1997), that the
Child Support Recovery Act is permissible under
category two because it regulates things in
commerce. See United States v. Williams, 121 F.3d
615, 619 (11th Cir. 1997); United States v.
Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997);
United States v. Hampshire, 95 F.3d 999, 1003-04
(10th Cir. 1996); United States v. Mussari, 95
F.3d 787, 790-91 (9th Cir. 1996).

/6 In United States v. Bell, 70 F.3d 495 (7th Cir.
1995), we upheld sec. 922(g)(1) without engaging
in a categorical analysis. Instead, we concluded
merely that sec. 922(g)(1), which makes it unlaw-
ful for a felon "to ship or transport in inter-
state or foreign commerce, or possess in or
affecting commerce, any firearm," is generally
immune from constitutional attack under Lopez:

Had Mr. Bell gone to trial, the government would
have been required to prove that the weapon he
sold to the undercover agent had traveled in
interstate commerce. In other words, to secure a
conviction under sec. 922(g)(1) the government had to
prove exactly what Lopez found to be missing under sec.
922(q). Because Mr. Bell entered a guilty plea,
he admitted the existence of a factual basis for
the requirement of a nexus with interstate com-
merce.

Bell, 70 F.3d at 498.

  There have been subsequent cases from this
circuit upholding sec. 922(g)(1), as well as
other provisions of sec. 922, using the same,
non-categorical rationale as Bell:

Sec. 922(g)(1): United States v. Williams, 128
F.3d 1128, 1133-34 (7th Cir. 1997); United States
v. Lewis, 100 F.3d 49, 51-53 (7th Cir. 1996);
United States v. Bradford, 78 F.3d 1216, 1222-23
(7th Cir. 1996); and United States v. Lee, 72
F.3d 55, 58-59 (7th Cir. 1995).

Sec. 922(g)(8): United States v. Wilson, 159
F.3d 280, 285-87 (7th Cir. 1998).

Sec. 922(g)(9): Gillespie v. City of Indianapo-
lis, 185 F.3d 693, 705-06 (7th Cir. 1999).

Sec. 922(u): United States v. Hardy, 120 F.3d
76, 77-78 (7th Cir. 1997) (per curiam).
