           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Andrews                   No. 03-5088
        ELECTRONIC CITATION: 2004 FED App. 0292P (6th Cir.)
                    File Name: 04a0292p.06                               Mark A. Wohlander, John Patrick Grant, ASSISTANT
                                                                         UNITED STATES ATTORNEYS, Lexington, Kentucky, for
                                                                         Appellee.
UNITED STATES COURT OF APPEALS
                                                                                            _________________
                  FOR THE SIXTH CIRCUIT
                    _________________                                                           OPINION
                                                                                            _________________
 UNITED STATES OF AMERICA , X
                                                                           MARTHA CRAIG DAUGHTREY, Circuit Judge. The
             Plaintiff-Appellee, -                                       defendant, Lonny Andrews, was convicted on 27 counts of a
                                   -
                                   -   No. 03-5088                       28-count indictment that charged him with the production,
            v.                     -                                     receipt, and possession of child pornography, in violation of
                                    >                                    18 U.S.C. §§2251(b), 2252(a)(2), and 2252(a)(4)(B)
                                   ,                                     respectively. Under count 28, he was ordered to forfeit items
 LONNY J. ANDREWS,                 -
          Defendant-Appellant. -                                         and equipment utilized in committing those offenses. On
                                                                         appeal, he challenges only his convictions on the first two
                                  N                                      counts, contending that §2251(b) is unconstitutional as
      Appeal from the United States District Court                       applied to him because the government failed to establish a
    for the Eastern District of Kentucky at Lexington.                   sufficient nexus between his alleged activities and interstate
  No. 02-00105—Karl S. Forester, Chief District Judge.                   or foreign commerce, thereby depriving the district court of
                                                                         jurisdiction to try the case. He also argues that the district
                   Submitted: March 10, 2004                             court erred in permitting the introduction of certain
                                                                         photographs. We find no basis on which to overturn the
            Decided and Filed: September 2, 2004                         jury’s verdict and affirm.

  Before: BOGGS, Chief Judge; DAUGHTREY, Circuit                             FACTUAL AND PROCEDURAL BACKGROUND
           Judge; ALDRICH, District Judge.*
                                                                            The record in this case establishes that defendant Andrews
                      _________________                                  lived in a four-bedroom trailer in Nicholasville, Kentucky,
                                                                         with his wife, his seven-year-old step-daughter, and the
                           COUNSEL                                       couple’s two-year-old daughter. In May 2002, his two nieces,
                                                                         aged 12 and 16, came to Andrews’s home from Alabama to
ON BRIEF: Richard R. Melville, PRATT & MELVILLE,                         spend the summer. Apparently, the 16-year-old left the house
Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr.,              with the defendant’s wife at various times, leaving Andrews
                                                                         in the house with the other children. On one occasion, he
                                                                         took advantage of their absence to show the seven-year-old
    *
                                                                         and the 12-year-old a “video of naked people” engaged in
      The Honorab le Ann Aldrich, United States District Judge for the   sexual relations. After the two children watched the video,
No rthern D istrict of O hio, sitting by designation.

                                  1
No. 03-5088                    United States v. Andrews       3    4     United States v. Andrews                     No. 03-5088

Andrews told them that he wanted them to do similar things         “visual depictions,” each of which was described in the
with him and forced his step-daughter to perform oral sex on       indictment as involving “a minor female engaged in the
him. At another time, Andrews showed the girls a picture of        lascivious exhibition of her genitals or pubic area.” The hard
a “naked teenager” from his computer’s “picture gallery,”          drive on Andrews’s computer also contained 107 photographs
telling them that he had received the picture from a friend.       of his niece and his step-daughter, mostly of the girls’ genitals
                                                                   and buttocks, that Andrews had directed the girls to take of
   Andrews had purchased a small “pen camera” at Wal-Mart          each other using his pen camera.
that he could use to produce photographs on his computer
screen. Andrews taught his niece and step-daughter how to            The detective found the pen camera attached to Andrews’s
use the pen camera and, on two occasions, he told them to          computer. Nearby, he also found a compact disk containing
take pictures of each other’s “privates” while they were           over 200 pornographic images of unidentified prepubescent
naked. The first time, Andrews watched his niece take              girls, defined as under the age of 12. Research verified that
pictures of his step-daughter. After the girls took the pictures   these images were available on the Internet and could be
of each other, Andrews loaded the pictures into his                downloaded onto a disk using the disk “burner” found among
computer’s “picture gallery.” These pictures could also be         the defendant’s computer equipment. They appeared to have
uploaded onto the Internet, although there was no evidence         been downloaded from the Internet in December 1999 and
presented at trial that Andrews actually did so. Andrews           January 2000. Once, in the fall of 2000, almost two years
frightened the two children into silence by threatening that “if   before the events at issue here took place, Stacy Andrews was
[they] ever told on him that he – that he would go to jail and     using the computer and happened upon an image of a young,
it would be all [their] fault and that he would beat [them].”      nude child. According to her testimony at trial, she told her
                                                                   husband to remove the image from the computer or she would
  Nevertheless, the younger of the two nieces apparently           “throw the computer out in the front yard.”
confided in her older sister, who then told Andrews’s wife,
Stacy, that the 12-year-old had something to tell her. From          Lonny Andrews testified at trial, denying that he had
her ensuing conversation with the 12-year-old, Stacy               enticed his niece or his step-daughter to use his pen camera to
Andrews learned that her husband was making the two                take the pornographic photos. He also denied uploading their
children take sexually explicit photos of each other with the      pictures onto the computer or the internet, or downloading the
pen camera. She contacted the local sheriff’s office and filed     pornographic images of prepubescent girls onto the compact
a petition for an emergency protective order on behalf of the      disk . Because the file on the compact disk was labeled
children. The order was granted and, as a result of its            “Jimmy,” he argued that a friend of his named Jim must have
directive, Lonny Andrews was removed from the residence.           downloaded the images while he was staying at the Andrews
                                                                   house. The jury nevertheless convicted the defendant on all
   After the defendant’s departure, the sheriff searched the       27 counts of the indictment, presumably finding that his
trailer with Stacy’s consent and seized various items,             testimony was not credible, and the district court imposed
including the defendant’s computer, some compact disks,            consecutive sentences totaling 405 years, pursuant to
hard disk drives, and the pen camera – all of which had been       sentencing guidelines mandated by Congress as part of the
manufactured or acquired from out-of-state or abroad. During       Sex Crimes Against Children Prevention Act, and enhanced
the search, a detective examined Andrews’s computer there          by a finding that Andrews had obstructed justice by testifying
on the premises, opened some electronic files, and found           falsely at trial. The defendant now appeals only his
No. 03-5088                    United States v. Andrews       5    6      United States v. Andrews                   No. 03-5088

convictions for the production of child pornography in             facts of this case. Corp was a 23-year-old defendant who was
violation of 18 U.S.C. § 2251(b), as set out in counts one and     prosecuted under 18 U.S.C. §2252(a)(4)(B) for possessing
two of the indictment.                                             child pornography, consisting of photographs of his 17-year-
                                                                   old girlfriend and his 26-year-old wife engaged in consensual
                       DISCUSSION                                  sexual activity. Id. at 326. Section 2252(a)(4)(B) provides
                                                                   that an offender will be punished if he or she
  At the time of Andrews’s trial, § 2251(b) provided as
follows:                                                               . . . knowingly possesses 1 or more books, magazines,
                                                                       periodicals, films, video tapes, or other matter which
  Any parent, legal guardian, or person having custody or              contain any visual depiction that has been mailed, or has
  control of a minor who knowingly permits such minor to               been shipped or transported in interstate or foreign
  engage in, or to assist any other person to engage in,               commerce, or which was produced using materials which
  sexually explicit conduct for the purpose of producing               have been mailed or so shipped or transported, by any
  any visual depiction of such conduct shall be punished as            means including by computer, if--
  provided under subsection (d) of this section, if such
  parent, legal guardian, or person knows or has reason to               (i) the producing of such visual depiction involves
  know that such visual depiction will be transported in                     the use of a minor engaging in sexually explicit
  interstate or foreign commerce or mailed, if that visual                   conduct; and
  depiction was produced using materials that have
  been mailed, shipped, or transported in interstate or                  (ii) such visual depiction is of such conduct[.]
  foreign commerce by any means, including by
  computer, or if such visual depiction has actually been             Federal jurisdiction in Corp was alleged to arise from the
  transported in interstate or foreign commerce or mailed          fact that the photographic paper on which the pornography
  (emphasis added).                                                was produced had been manufactured out-of-state,
                                                                   specifically in Germany. Corp, 236 F.3d at 326. Corp argued
  Federal jurisdiction over the offenses charged in counts one     that the statue was unconstitutional on its face and as applied
and two was based on the fact that Andrews purchased his           in his case because it exceeded Congress’s Commerce Clause
computer from New Jersey and that the pen camera was made          powers. Id. at 327. In reviewing this claim, the Corp court
in China. Andrews does not argue that § 2251(b) is facially        applied the framework developed by the Supreme Court in
unconstitutional, instead contending that it is unconstitutional   United States v. Lopez, 514 U.S. 549 (1995) (striking down
under the Commerce Clause as applied to him because his            the Gun-Free School Zones Act because Congress exceeded
activities did not substantially relate to interstate commerce.    its power under the Commerce Clause), and in United States
Questions of federal jurisdiction are reviewed de novo by this     v. Morrison, 529 U.S. 598 (2000) (striking down the civil
court. See United States v. Brown, 276 F.3d 211, 214 (6th          remedy provision of the Violence Against Women Act as
Cir. 2002), cert. denied, 535 U.S. 1079 (2002).                    unconstitutional under the Commerce Clause), to hold that
                                                                   §2252(a)(4)(B) was facially constitutional. See Corp, 236
  Andrews relies almost exclusively on our opinion in United       F.3d at 331-332. On the other hand, the court also held that
States v. Corp, 236 F.3d 325 (6th Cir. 2001), to support his       because the defendant’s activity was not substantially related
argument that § 2251(b) is unconstitutional as applied to the      to interstate commerce, the statute was unconstitutional as
No. 03-5088                    United States v. Andrews          7   8        United States v. Andrews                             No. 03-5088

applied to the facts in his case. But in doing so, the court             otherwise sexually abused? Was there a record that
emphasized that those facts were unique and that Corp’s                  defendant repeatedly engaged in such conduct or other
conduct was not the type of activity that Congress had                   sexually abusive conduct with children? Did defendant
intended to prohibit:                                                    move from place to place, or state to state, and repeatedly
                                                                         engage in production of such pictures of children? These
  Under the undisputed circumstances here, Corp was not                  questions are relevant to a determination on a
  involved, nor intended to be involved, in the distribution             case-by-case basis about whether the activity involved in
  or sharing with others of the pictures in question.                    a certain case had a substantial effect on commerce.
  Sauntman [the seventeen-year-old] was not an "exploited
  child" nor a victim in any real and practical sense in this        Id. at 333.
  case. In the other cases that have addressed this issue, the
  courts were faced with the much more threatening                      Although not all the Corp questions are pertinent here, an
  situation where an adult was taking advantage of a much            inquiry along the lines it suggests produces a stark distinction
  younger child or using the imagery for abusive or                  between the facts in Corp and the facts in this case. Andrews
  semi-commercial purposes . . . .                                   was clearly involved in exactly the type of child-exploitive
                                                                     and abusive behavior that Congress sought to prohibit in
  Corp was not alleged to be a pedophile nor was he                  § 2251(b), using computer equipment that had been shipped
  alleged to have been illegally sexually involved with              in interstate commerce. Andrews first forced two children
  minors other than Sauntman, who was merely months                  aged 12 and under to watch sexually explicit photographs that
  away from reaching majority. Clearly, Corp was not the             presumably had been transmitted over interstate lines. He
  typical offender feared by Congress that would become              then compelled them to engage in and to photograph similar
  addicted to pornography and perpetuate the industry via            sexually explicit behavior, undoubtedly for the purpose of
  interstate connections. Under these circumstances, the             transmitting those photographs in the same manner.1 The
  government has failed to make a showing that Corp's sort           children were vulnerable not only because of their age but
  of activity would substantially affect interstate                  also because they were under his care and control at the time,
  commerce.                                                          and their cooperation was clearly the result of coercion and
                                                                     outright threats to their safety. In addition, Andrews was in
Corp, 236 F.3d at 332-33.                                            possession of several hundred pornographic photographs
  Moreover, the Corp opinion contains a suggestion that in
future cases, courts should undertake the following
                                                                          1
examination in order to ensure that the jurisdictional reach of            As the Second Circuit noted in Un ited States v. Holston, 343 F.3d
the statute is properly circumscribed:                               83, 88-90 (2nd C ir. 2003), Congress has made legislative findings
                                                                     documenting that “there is an extensive co mmercial m arket in child
  Was the activity in this case related to explicit and              pornography and that much of the m aterial that feeds this m arket is
                                                                     ‘homegrown,’ that is, produced by amateur photographers . . . . Because
  graphic pictures of children engaged in sexual activity,           much of the child pornography that concerned Congress is homegrown,
  particularly children about fourteen years of age or               untraceable, and enters the national market surreptitiously , we conclude
  under, for commercial or exploitive purposes? Were                 that Congress, in an attempt to halt interstate trafficking, can prohibit local
  there multiple children so pictured? Were the children             production that feeds the national market and stim ulates demand, as this
                                                                     production sub stantially affects interstate comm erce.”
No. 03-5088                         United States v. Andrews             9    10   United States v. Andrews                     No. 03-5088

depicting unidentified children who appeared to be under the                  suggest that the photographs were unreliable, the district court
age of 12. As early as two years before his arrest on these                   cannot be charged with committing error in failing to
charges, his wife had seen the pornographic image of a child                  intervene sua sponte to prevent their introduction into
on his computer.                                                              evidence, or in declining to order a new trial on the same
                                                                              basis.
  Given the scope of the evidence in the record, we have no
doubt that the government established a sufficient nexus                                             CONCLUSION
between the activity described in the first two counts of the
indictment and interstate commerce to establish jurisdiction                    For the reasons set out above, we AFFIRM the judgment of
in this case. We therefore find no merit to the defendant’s                   the district court in all respects.
argument that § 2251(b) was unconstitutional as applied to
that activity.
  Nor do we find reversible error in connection with the
admission into evidence of Exhibit 4, which consisted of the
sexually explicit photos of Andrews’s seven-year-old step-
daughter and his 12-year-old niece. Because Andrews did not
object to the introduction of the photos at trial, we review the
admission of the photos only for plain error.2 See United
States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996); FED . R.
EVID . 103(d) (“Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not
brought to the attention of the court.”). He complains that the
detective who seized his computer tampered with the photos,
based on the fact that the dates on some of the photographs
had been altered when the files were examined at his home.
However, there is no other evidence to suggest tampering, and
the detective’s testimony that he had not altered the
photographs could have been discredited on cross-
examination but was not. The jury clearly found credible the
detective’s testimony that no alteration had occurred. Without
a timely objection and the production of some evidence to

    2
      Although the defendant did not object to the introduction of Exhibit
4, he later moved for a judgment of acquittal based on the fact that “[t]he
dates of downloading of some of the PenCam pictures on July the 11th
and July 14th were after the defendant had been vacated from the
residence, and the testimony was that he hadn’t been back.” The co urt
denied the motion.
