                            NOT FOR FULL-TEXT PUBLICATION
                                  File Name: 10a0098n.06

                                            No. 08-5827

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                  FILED
UNITED STATES OF AMERICA,                                                     Feb 16, 2010
                                                                         LEONARD GREEN, Clerk
               Plaintiff-Appellee,
                                                       ON APPEAL FROM THE
v.                                                     UNITED STATES DISTRICT
                                                       COURT FOR THE WESTERN
MICHAEL BRYAN POWERS,                                  DISTRICT OF TENNESSEE

            Defendant-Appellant.
____________________________________/

BEFORE: SUHRHEINRICH, McKEAGUE, and KETHLEDGE; Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Michael Powers appeals his judgment and convictions

on two counts of possession of child pornographic images in violation of 18 U.S.C. § 2252(a)(4)(B).

Powers claims that the district court (1) lacked federal jurisdiction as to Count II of the indictment;

(2) unconstitutionally limited his right to confront his accusers by not allowing him to question a key

witness about her marijuana use; and (3) improperly denied his proposed jury instruction on venue.

For the reasons that follow, we AFFIRM the judgment of the district court.

                                        I. BACKGROUND

A.     Factual and Procedural Background

       This case began when the Federal Bureau of Investigation (“FBI”) received a tip from Yahoo,

Inc. (“Yahoo”), headquartered in Sunnyvale, California, about a Yahoo group account named

“luvbeauty03” that contained child pornographic images. This account was created on July 24, 2006,

by an individual using the screen name LuvBeauty03@yahoo.com. By tracing the IP address, it was
determined that the account was created on a computer located at 1236 Madison Avenue, Apartment

6, Memphis, Tennessee. The account was accessed an additional four times, from the same IP

address, between July 24th and July 25th, 2006. The Elwood family lived in this apartment, which

at the time consisted of Scott and Teresa Elwood, husband and wife, a 15 year-old daughter, and a

9 year-old son.

        The FBI executed a search warrant of the Elwood residence in March 2007 in response to this

information. Upon speaking with Ms. Elwood, the FBI learned that Powers had lived with the

Elwoods between July and August 2006. Powers was a longtime friend of Mr. Elwood. There were

three computers in the home during this time period, two of which were connected to the internet.

One in the master bedroom was used by Mr. Elwood for work, and another rented computer was kept

in the foyer and used by everyone in the home. By the time the FBI searched the home, the computer

in the foyer had been returned to the rental company. The third computer was broken during the time

that Powers lived there, and Mr. Elwood gave Powers this computer when Powers moved out.

Powers never had a job while he lived at the Elwoods’, and he spent a lot of time on the computer

in the foyer.

        At this point Powers became a person of interest in the investigation. Powers met with FBI

agents on March 22, 2007. He admitted to the FBI that “luvbeauty03” was his Yahoo account, that

he had created the Yahoo group “luvbeauty03,” and that he was the only person with a password.

He informed the agents that he did not create the group to distribute child pornography, but only to

use it for his own personal use. He further told the agents of other online account names that he

used, including the name “ST1.Cold.” Powers also stated that Mr. Elwood had an interest in child

pornography and that they had viewed child pornography together. Powers gave the agents the


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computer that Mr. Elwood had given him. Powers had subsequently repaired the computer, but it

had broken again before he gave it to the agents. He told the agents that they could search his

residence, but that they would not find any child pornographic images because he had thrown his

looseleaf folder filled with child pornographic images into a river a couple days before—after

learning from Mr. Elwood that the FBI wanted to speak with him about child pornography.

       Powers was indicted on two counts of possession of child pornography. Count I related to

Powers’ knowing possession, between May and August 2006, of a Yahoo group account that

contained approximately 66 child pornographic images. Count II related to Powers’ knowing

possession, between September 2006 and March 22, 2007, of a computer that contained child

pornographic images.

       The evidence at trial overwhelmingly linked Powers to the child pornography listed in both

counts of the indictment. An FBI agent testified about Powers’ confession, and Mr. Elwood testified

that he viewed child pornography with Powers, sometimes while they engaged in oral sex. Mr.

Elwood further testified that to help him access child pornography, Powers provided him with the

password to an e-mail account on AOL. He was familiar with the name “luvbeauty03” because he

had seen the name in Powers’ AOL account. Ms. Elwood also testified about Powers’ frequent use

of the computer during his stay at the Elwoods’. Moreover, a computer forensics examiner testified

about his recovery of child pornographic images from the hard drive of the computer Powers gave

to the police, and these recovered images were entered into evidence. The computer forensics

examiner found child pornographic images stored in the free space on the hard drive, and the

metadata in the computer indicated that the images had previously been stored in more accessible

locations on the computer under the name ST1.Cold. One of the images listed in the indictment was


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modified on January 25, 2007. Furthermore, the images from the Yahoo account were entered into

evidence, as well as records and testimony that established that the account was created and used

from the Elwoods’ residence.

         After the jury found Powers guilty on both counts, he was sentenced to 130 months in prison

on each count, running concurrently, followed by five years of supervised release. He appeals.

                                                 II. ANALYSIS

A.       Federal Jurisdiction

         Powers argues that the Government has failed to establish federal jurisdiction for the conduct

described in Count II of the indictment—related to his knowing possession of a computer that

contained child pornographic images. This court reviews questions of jurisdiction de novo. United

States v. Brown, 276 F.3d 211, 214 (6th Cir. 2002) (citing United States v. Nash, 175 F.3d 440, 442

(6th Cir. 1999)). Powers maintains that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional as applied

because the Government failed to establish that the conduct in Count II had any nexus with interstate

commerce.1 Under § 2252(a)(4)(B), “federal jurisdiction is established by showing that the image

traveled in interstate or foreign commerce or that it was produced by materials that have traveled in

interstate commerce.” At trial, the Government established that the hard drive on which the images

were found was produced in Singapore. The Government offered no other direct or circumstantial

evidence related to Count II that would satisfy the jurisdictional requirement. Powers alleges that

this connection is not enough to establish the needed nexus with interstate commerce.

         This court considers as-applied challenges to federal child pornography statutes with the


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           Powers does not contend that the statute is unconstitutional on its face; an argument that this court has
consistently rejected. See, e.g., United States v. Halter, 259 F. App'x 738, 742 (6th Cir. 2008) (citing United States
v. Corp, 236 F.3d 325, 332 (6th Cir. 2001)).

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federal jurisdiction test employed by the Supreme Court in Gonzalez v. Raich, 545 U.S. 1 (2005).

See, e.g., United States v. Gann, 160 F. App'x 466, 473 (6th Cir. 2005); United States v. Chambers,

441 F.3d 438, 454-55 (6th Cir. 2006). In Raich, the Supreme Court upheld the federal government’s

regulation of homegrown medicinal marijauna not intended for distribution. Raich, 545 U.S. 1. The

Court reasoned that precedent “firmly establishe[d] Congress’ power to regulate purely local

activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate

commerce.” Id. at 17. It found production, distribution, and consumption of commodities to be

quintessentially economic activities. Id. at 25-26. It further remarked that the de minimis character

of individual instances of economic activities was inconsequential, so long as Congress had a

rational basis for viewing the economic activity, taken in the aggregate, as substantially affecting

interstate commerce. Id. at 17, 22.

        This court has noted that, like with federal marijuana statutes, the federal child pornography

statutes are constitutional as applied when they are a part of a comprehensive regulation designed

to govern the interstate market of a fungible commodity and Congress rationally believed that the

commodity could feed a national market and stimulate demand. Gann, 160 F. App'x at 473 (finding

§ 2251(a) to be constitutional as applied). Accordingly, “[w]hether this general regulation of child

pornography encompasses some purely intrastate activity is of ‘no moment.’” Id. (quoting Raich, 545

U.S. at 22). As a result, Powers’ as-applied challenge fails because his consumption of child

pornography alone is enough to establish federal jurisdiction, regardless of the contended intrastate

character of his activities. Compare United States v. Corp, 236 F.3d 325 (6th Cir. 2001) (pre-Raich

decision finding § 2252(a)(4)(B) unconstitutional as applied where the sole basis for federal

jurisdiction was the fact that the photos were developed on paper made in Germany), with Chambers,


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441 F.3d at 451-55 (post-Raich decision finding § 2252(a)(4)(B) constitutional as applied where the

only evidence offered at trial of an interstate connection was the defendant’s use of Polaroid film

made in either Massachusetts or the Netherlands to develop the images), and United States v.

Bowers, --- F.3d ---, 2010 WL 424911, at *6 (6th Cir. Feb. 8, 2010) (“[W]e take this opportunity to

make clear that, after Raich, this court's decision in Corp is no longer good law.”).

B.      Impeachment of Ms. Elwood

        Powers contends that the district court improperly limited examination of Ms. Elwood in

violation of his right to confront his accusers. During cross-examination, Powers’ counsel attempted

to question Ms. Elwood about her marijuana use. The Government objected to this line of

questioning, and the judge sustained the objection. The judge dismissed the jury, and a voir dire was

conducted on this issue. Ms. Elwood admitted that she had smoked marijuana since she was 16, and

that she had smoked marijuana with Powers between five and ten times while her children were

home. Furthermore, in response to a question related to her ability to recall events, she stated, “I

have no problem with remembering things.”

        Evidentiary rulings, even constitutional challenges to those rulings, are considered under the

abuse of discretion standard. United States v. Davis, 577 F.3d 660, 666 (6th Cir. 2009) (quoting

United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003)). The Supreme Court has remarked

that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive

or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). See also Boggs

v. Collins, 226 F.3d 728, 736 (6th Cir. 2000). A Confrontation Clause issue only emerges when the


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limitations have “emasculate[d] the right of cross-examination itself.” Hargrave v. McKee, 248 F.

App'x 718, 726 (6th Cir. 2007) (quoting Delaware v. Fensterer, 474 U.S. 15, 19 (1985)).2

         In this case, the judge properly exercised his discretionary powers in refusing to allow the

questions on drug use. Drug use may be used to attack a witness’s “ability to perceive the underlying

events and testify lucidly at trial.” United States v. Martinez, 59 F. App'x 638, 646 (6th Cir. 2003).

But, “a district court may refuse cross-examination on the issue where memory or mental capacity

is not legitimately at issue and the evidence is offered solely as a general character attack.” United

States v. Mojica, 185 F.3d 780, 789 (7th Cir. 1999). See also United States v. Holden, 557 F.3d 698,

703 (6th Cir. 2009) (finding that the district court properly limited impeachment of a witness about

past drug treatment that was a general attack on the witness’s credibility). The main thrust of Ms.

Elwood’s testimony was that Powers often used the family computer during the two months that he

lived in her home. The use of marijuana five or ten times would not have influenced her ability to

perceive how often Powers used the computer. Thus, her ability to testify lucidly at trial was not

legitimately at issue, and the judge appropriately ruled that the prejudicial impact of the drug use

outweighed its probative value.

C.       The Proposed Jury Instruction on Venue

         Powers argues that the district court erred when it declined to give a jury instruction on venue

with regard to Count I of the indictment—related to the creation of the Yahoo group that contained

child pornographic images. This court reviews a jury charge “as a whole to determine whether the

charge fairly and adequately submit[ted] the issues and law to the jury.” United States v. Heath, 525


         2
          This court has also said that “[t]he applicable standard of review for an evidentiary ruling of the district
court where the evidentiary issues relate to a claimed violation of the Sixth Amendment is the de novo standard.”
United States v. Robinson, 389 F.3d 582, 591-92 (6th Cir.2004).

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F.3d 451, 455-56 (6th Cir. 2008) (citing United States v. Buckley, 934 F.2d 84, 87 (6th Cir. 1991)).

“A trial court's refusal to give a requested jury instruction is reversible error only if the instruction

is 1) correct, 2) not substantially covered by the actual jury charge, and 3) so important that failure

to give it substantially impairs defendant's defense.” United States v. Sassak, 881 F.2d 276, 279 (6th

Cir. 1989) (citing United States v. Parrish, 736 F.2d 152, 156 (5th Cir. 1984)). This court reverses

a district court’s decision “only if the instructions, viewed as a whole, were confusing, misleading

and prejudicial.” Heath, 525 F.3d at 456 (quoting United States v. Clark, 988 F.2d 1459, 1468 (6th

Cir. 1993)).

        The Government had to prove venue by a preponderance of the evidence. United States v.

Cooper, 40 F. App'x 39, 40 (6th Cir. 2002) (citing United States v. Crozier, 259 F.3d 503, 519 (6th

Cir. 2001)). The district court did not err in refusing to give a venue instruction before submitting

the issue to the jury because the “record clearly reflects that the [G]overnment had established venue,

despite the trial court's failure to instruct the jury . . . .” Id. Specifically, Powers did not dispute

evidence and testimony related to the IP address that established that the “luvbeauty03” group was

created, and the pictures uploaded and viewed, from the Elwoods’ home—located in the Western

District of Tennessee. See Crozier, 259 F.3d at 519 (“Venue is proper in the state or district where

the offense was committed.”). Because venue was clearly established, a venue instruction could not

have been important enough to substantially impair Powers’ defense.

                                        III. CONCLUSION

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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